Child Custody Attorney
What it means to “have custody” of a child: Having custody of a child is really a series of rights, powers, privileges, and duties relative to that child. These rights, powers, privileges, and duties are defined by the State of Texas and granted to you by the court once the child has been submitted to the jurisdiction of the court of competent jurisdiction (the court, being either a county court or a state district court, depending on where you live).
In Custodial Legis: What people often do not understand is what it means when they submit to a child to the jurisdiction of the court in a divorce or parentage case. Couples who give birth to a child or even those who adopt a child move through life without state intervention into the life of the child except in cases of abuse/neglect or criminal activity of the child. These couples do not know anything about state-defined rights, powers, privileges, and duties. They just raise the child. These parents do, in fact, utilize these rights powers, privileges and duties without ever thinking of them individually or thinking that one parent can or should be denied any of them.
But, once a child is submitted to the jurisdiction of a court for the purpose of establishing parentage or in conjunction with the granting of a divorce, that child is, until that child’s attainment of the age of eighteen (18) years and has graduated from high school, under the jurisdiction of the court which issues the first order pertaining to that child – called thereafter the court of continuing jurisdiction. That court retains jurisdiction over that child until the child is moved out of the county, but then only transfers the court’s jurisdiction to another court of competent jurisdiction in the new county of residence of the child in Texas.
Why does any of this matter? Because people are often very and unpleasantly surprised to learn of the broad powers of the court over the life of the child and the child’s parents and surprised to learn what they are able to do, are unable to do any longer and what they must now share with the other parent which they did not share in the past. The goal here is to acquaint you with what these rights, powers, privileges, and duties, which you will be called upon to negotiate even in your role as a parent.
§151.001 Rights and Duties of Parent
(a) A parent of a child has the following rights and duties:
(1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;
(2) the duty of care, control, protection, and reasonable discipline of the child;
(3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
(4) the duty, except when a guardian of the child’s estate has been appointed, to manage the estate of the child, including the right as an agent of the child to act in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government;
(5) except as provided by Section 264.0111, the right to the services and earnings of the child;
(6) the right to consent to the child’s marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;
(7) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(8) the right to receive and give a receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;
(9) the right to inherit from and through the child;
(10) the right to make decisions concerning the child’s education; and
(11) any other right or duty existing between a parent and child by virtue of law.
(b) The duty of a parent to support his or her child exists while the child is an unemancipated minor and continues as long as the child is fully enrolled in a secondary school in a program leading toward a high school diploma and complies with attendance requirements described by Section 154.002(a)(2).
( c) A parent who fails to discharge the duty of support is liable to a person who provides necessaries to those to whom support is owed.
(d) The rights and duties of a parent are subject to:
(1) a court order affecting the rights and duties;
(2) an affidavit of relinquishment of parental rights; and
(3) an affidavit by the parent designating another person or agency to act as managing conservator.
(e) Only the following persons may use corporal punishment for the reasonable discipline of a child:
(1) a parent or grandparent of the child;
(2) a stepparent of the child who has the duty of control and reasonable discipline of the child; and
(3) an individual who is a guardian of the child and who has the duty of control and reasonable discipline of the child.
§153.073 Rights of Parent at All Times
(a) Unless limited by court order, a parent appointed as a conservator of a child has at all times the right:
(1) to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
(2) to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
(3) of access to medical, dental, psychological, and educational records of the child;
(4) to consult with a physician, dentist, or psychologist of the child;
(5) to consult with school officials concerning the child’s welfare and educational status, including school activities;
(6) to attend school activities;
(7) to be designated on the child’s records as a person to be notified in case of an emergency;
(8) to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
(9) to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.
(b) The court shall specify in the order the rights that a parent retains at all times.
These rights are deemed to be a constituent part of parenting and the right of every parent unless the behavior of the parent suggests that granting the parent these rights would not be in the best interest of the child. Example: a father who routinely shows up at the child’s little league or football practices and games clearly under the influence of alcohol or drugs, uses foul and abusive language directed at the officials, his own child, other players, or other parents in the stands, gets into shouting, pushing, shoving or hitting matches with the officials or other parents can expect to have #5 and #6 above severely curtailed, if not denied him altogether. This reality is codified at:
§153.072 Written Finding Required to Limit Parental Rights and Duties
The court may limit the rights and duties of a parent appointed as a conservator if the court makes a written finding that the limitation is in the best interest of the child.
Exposure of a Child to Sex Offenders and Perpetrators of Family Violence
One might think that a child is so loved by both parents that neither parent would ever expose the child to the potential harm of any kind, particularly, contact with known sex offenders and known perpetrators of family violence (people who hit their partners, their own children and the children of their partners). Well, one would be wrong. So wrong, in fact, that the State of Texas had to pass a law requiring parents to notify the child’s other parent of the child’s exposure to such people. Hence, the following portion of the Texas Family Code:
§153.076 Duty to Provide Information
(a) The court shall order that each conservator of a child 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.
(b) The court shall order that each conservator of a child has the duty to inform the other conservator of the child if the conservator resides with for at least 30 days, marries, or intends to marry a person who the conservator knows:
(1) is registered as a sex offender under Chapter 62, Code of Criminal Procedure; or
(2) is currently charged with an offense for which on conviction the person would be required to register under that chapter.
(b-1) The court shall order that each conservator of a child has the duty to inform the other conservator of the child if the conservator:
(1) establishes a residence with a person who the conservator knows is the subject of a final protective order sought by an individual other than the conservator that is in effect on the date the residence with the person is established;
(2) resides with, or allows unsupervised access to a child by, a person who is the subject of a final protective order sought by the conservator after the expiration of the 60-day period following the date the final protective order is issued; or
(3) is the subject of a final protective order issued after the date of the order establishing a conservatorship.
( c) The notice required to be made under Subsection (b) must be made as soon as practicable but not later than the 40th day after the date the conservator of the child begins to reside with the person or the 10th day after the date the marriage occurs, as appropriate. The notice must include a description of the offense that is the basis of the person’s requirement to register as a sex offender or of the offense with which the person is charged.
(c-1) The notice required to be made under Subsection (b-1) must be made as soon as practicable but not later than:
(1) the 30th day after the date the conservator establishes a residence with the person who is the subject of the final protective order if the notice is required by Subsection (b-1)(1);
(2) the 90th day after the date the final protective order was issued, if the notice is required by Subsection (b-1)(2); or
(3) the 30th day after the date the final protective order was issued, if the notice is required by Subsection (b-1)(3).
(d) A conservator commits an offense if the conservator fails to provide notice in the manner required by Subsections (b) and ©, or Subsections (b-1) and (c-1), as applicable. An offense under this subsection is a Class C misdemeanor.
While subsection (d) above seems an insignificant consequence for violation of this law (yes, you forever had a criminal conviction on your record, but it is only a misdemeanor), but the real consequence is in the Family Court, not the Criminal Court, because the Family Court can not only take custody away from you, but, it can severely limit the amount of time you get to see the child, require that all contact with the child be supervised and require you to pay for that supervision, or, prevent all contact with the child. Is that sex offender or that family violence perpetrator so important to your life that you would risk losing all contact with your child? Remember, this statute was created to give the other spouse an immediate opportunity to file for a change of custody for the protection of the child. If the offender in question is a registered sex offender or has a final order of protection issued against him/her, copies of those documents are proof conclusive without more of the violation of the statute in both the Family and Criminal Courts.
§153.074 Rights and Duties During Period of Possession
Unless limited by court order, a parent appointed as a conservator of a child has the following rights and duties during the period that the parent has possession of the child:
(1) the duty of care, control, protection, and reasonable discipline of the child;
(2) the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
(3) the right to consent for the child to medical and dental care not involving an invasive procedure; and
(4) the right to direct the moral and religious training of the child.
Just a few hot-button issues here:
● reasonable discipline: What is reasonable? Like beauty, it is in the eyes of the beholder. In other words, since reasonable discipline is not defined by statute, it’s definition is within the discretion of the court, so who is on the bench is of importance to you. Does your judge believe that all hitting by parents (corporal punishment whether it leaves bruises or not) teaches children to hit (the implication is… hit without discrimination; at all times; without cause), and, therefore, must never be used? But does not a swift rap on the behind also teach children not to run out into traffic? Touch the burners on a stove? Is it better that they learn not to run out into traffic by being hit by a car? By receiving a burn from the stove’s heating element?
● not involving invasive procedures: the dictionaries define the adjective “invasive” as it pertains to medical issues as “(of medical procedures) involving the introduction of instruments or other objects into the body or body cavities” and seems to contradict §153.073 Rights of Parent at All Times, item (8) above, “to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child”, but not so. It is a question of what the child absolutely needs versus what a parent wants for the child, and a couple of the major issues are:
● vaccination/immunizations – a major point of contention between parents and doctors and now the courts across the country;
● ear piercing – it is invasive, there is a hole in the earlobe after the piercing; there is the possibility of infection; the piercing needs frequent hygienic management after the procedure.
The Meat of Parenting
First, let us define some terms:
Sole Managing Conservator: the parent with the right to designate the primary residence of the child. The Sole Managing Conservator has all of the rights, powers, privileges and duties as set out in §153.073, §153.074, and §153.076 above.
Possessory Conservator: the parent without the right to designate the primary residence of the child. A Possessory Conservator may or may not have all of the rights, powers, privileges and duties as set out in §153.073, §153.074, and §153.076 above, depending on the findings of the Court.
Joint Managing Conservator: A conservator having all of the rights, powers, privileges, and duties as set out in §153.073, §153.074, and §153.076 above but otherwise defined by the terms of the Final Decree of Divorce or Modification or the Final Order of Parentage Establishing the Parent-Child Relationship.
State Favors Joint Managing Conservators, But
Presumes That Parent to be Appointed Managing Conservator
(a) Subject to the prohibition in Section 153.004 (pertaining to sexual abuse and domestic violence), unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.
§153.132 Rights and Duties of Parent Appointed Sole Managing Conservator
Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B (§153.073, §153.074, and §153.076 above) and the following exclusive rights:
(1) the right to designate the primary residence of the child;
(2) the right to consent to medical, dental, and surgical treatment involving invasive procedures;
(3) the right to consent to psychiatric and psychological treatment;
(4) the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
(5) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(6) the right to consent to marriage and to enlistment in the armed forces of the United States;
(7) the right to make decisions concerning the child’s education;
(8) the right to the services and earnings of the child; and
(9) except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government.
§153.191 Presumption that (Other) Parent to be Appointed Possessory Conservator
The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.
§153.192 Rights and Duties of Parent Appointed Possessory Conservator
(a) Unless limited by court order, a parent appointed as possessory conservator of a child has the rights and duties provided by Subchapter B (§153.073, §153.074, and §153.076 above) and any other right or duty expressly granted to the possessory conservator in the order.
(b) In ordering the terms and conditions for possession of a child by a parent appointed possessory conservator, the court shall be guided by the guidelines in Subchapter E (the state’s policy of assuring frequent contact between the child and the non-custodial parent to optimize the development of a close and continuing relationship and other siblings).
§153.193 Minimal Restriction on Parent’s Possession and Access
The terms of an order that denies possession of a child to a parent or imposes restrictions or limitations on a parent’s right to possession of or access to a child may not exceed those that are required to protect the best interest of the child.
Joint Managing Conservatorship
The parties may agree to establish a joint managing conservatorship or the court may impose a joint managing conservatorship on the parties, but without more than just the title, no one knows what the separate roles of the parents are. Hence the following statutes:
§153.133 Parenting Plan for Joint Managing Conservatorship –
Where the Parties Dictate the Roles of Each Parent
(a) If a written agreed parenting plan is filed with the court, the court shall render an order appointing the parents as joint managing conservators only if the parenting plan:
(1) designates the conservator who has the exclusive right to designate the primary residence of the child and:
(A) establishes, until modified by further order, the geographic area within which the conservator shall maintain the child’s primary residence; or
(B) specifies that the conservator may designate the child’s primary residence without regard to geographic location;
(2) specifies the rights and duties of each parent regarding the child’s physical care, support, and education;
(3) includes provisions to minimize disruption of the child’s education, daily routine, and association with friends;
(4) allocates between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent provided by Chapter 151;
(5) is voluntarily and knowingly made by each parent and has not been repudiated by either parent at the time the order is rendered; and
(6) is in the best interest of the child.
(b) The agreed parenting plan may contain an alternative dispute resolution procedure that the parties agree to use before requesting enforcement or modification of the terms and conditions of the joint conservatorship through litigation, except in an emergency.
( c) Notwithstanding Subsection (a)(1), the court shall render an order adopting the provisions of a written agreed parenting plan appointing the parents as joint managing conservators if the parenting plan:
(1) meets all the requirements of Subsections (a)(2) through (6); and
(2) provides that the child’s primary residence shall be within a specified geographic area.
Remember the State’s Preference for Joint Managing Conservatorships
§153.134 Court-Ordered Joint Managing Conservatorships
(a) If a written agreed parenting plan is not filed with the court, the court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child, considering the following factors:
(1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;
(2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
(3) whether each parent can encourage and accept a positive relationship between the child and the other parent;
(4) whether both parents participated in child rearing before the filing of the suit;
(5) the geographical proximity of the parents’ residences;
(6) if the child is 12 years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child; and
(7) any other relevant factor.
(b) In rendering an order appointing joint managing conservators, the court shall:
(1) designate the conservator who has the exclusive right to determine the primary residence of the child and:
(A) establish, until modified by further order, a geographic area within which the conservator shall maintain the child’s primary residence; or
(B) specify that the conservator may determine the child’s primary residence without regard to geographic location;
(2) specify the rights and duties of each parent regarding the child’s physical care, support, and education;
(3) include provisions to minimize disruption of the child’s education, daily routine, and association with friends;
(4) allocate between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent as provided by Chapter 151; and
(5) if feasible, recommend that the parties use an alternative dispute resolution method before requesting enforcement or modification of the terms and conditions of the joint conservatorship through litigation, except in an emergency.
Given the State’s preference that all parents, except in extraordinary cases, be given the title of Joint Managing Conservator, Courts generally always name the parties Joint Managing Conservators. But, as they say, “the devil is in the details” and the details in custody litigation boil down to five major components:
● geographical restrictions on the residence of the child: The child lives with the custodial parent to the extent that the custodial parent lives in the geographic area designated by the court (or agreed to by the parties in their parenting plan).
If the custodial parent wants to move outside that area, that parent must petition the court to change the restriction, even if the other parent agrees. The parties cannot unilaterally change a court order. They must have the court enter a new order reflecting their new agreement.
In many, many cases, however, the non-custodial parent will not agree for many reasons, the primary one being the interruption of the frequency and the quality of contact between the child and the non-custodial parent. This will often lead to custody litigation even where the original custody scheme was achieved amicably.
● the right to consent to medical, dental, and surgical treatment involving invasive procedures: The custodial parent, even in a Joint Managing Conservatorship, often has the exclusive right to make these decisions, except in an emergency involving an immediate danger to the health and safety of the child, though quite commonly now this becomes a shared/joint right where the parties can come to an agreement. Where they cannot agree, the child’s pediatrician becomes a tie-breaker.
● the right to consent to psychiatric and psychological treatment: Many parents who have been through custody litigation before are wary of any vehicle which might be used by the other parent to support the start of a renewed custody fight and allowing only one parent the right to put the child in counseling is often a tool designed to build a custody case. Everything the child says to the therapist is admissible in court. Therefore, it is rare that only one parent has this right exclusively. The tie-breaker mechanism is used, here again, retaining the child’s pediatrician as the tie-breaker.
● the right to make decisions concerning the child’s education: While the school to be attended by the child in the vast majority of cases is the school to which the child is zoned by the school district in which the child resides, there are other educational decisions which are important to the child’s development. Therefore, the tie-breaker mechanism is used here with the school counselor being the tie-breaker.
Additional considerations:
● the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child: Obviously, the custodial parent is never ordered to pay child support to the non-custodial parent.
(6) the right to consent to marriage and to enlistment in the armed forces of the United States: This right is actually extremely important. It is speaking to the right to consent to UNDERAGED marriage (marriage before the age of 18) and UNDERAGED enlistment in the armed forces. This is typically a right which requires the consent of both parents because it so impacts the child’s future life.
And finally, the most misinterpreted and misunderstood provision of the entire Family Code:
§153.009 Interview of Child in Chambers
(a) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.
(b) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship.
( c) Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.
(d) In a jury trial, the court may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict.
(e) In any trial or hearing, the court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview.
(f) On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court’s own motion, the court shall cause a record of the interview to be made when the child is 12 years of age or older. A record of the interview shall be part of the record in the case.
Nothing in this statute says, in any way, shape or form, that at 12 years of age a child ever gets to determine with whom the child will live primarily or when the child will see the non-custodial parent or how frequently. A child never decides anything at the courthouse.
The judge can and sometimes must interview the child, but the judge is never bound to do what the child tells the judge to do or to follow the child’s “preference”. The decision maker is always the judge.
Children are not given the keys to a car at age 12 and turned loose on an unsuspecting public. The same is true as to life-altering decision-making. Those are the duties of the adults involved, not the privilege or the responsibility of a child. Children often want what is bad for them. Children are often manipulated by their own parents and other bystanders to the parental relationship into parroting positions out of ignorance born of their youth, which they soon regret, or which they do not truly hold but are too afraid to denounce for fear of retribution by a parent or other bystanders in the relationship. Judges decide custody and visitation; not children.