Decisions regarding their children are the most important and difficult decisions our clients make. We take these issues very seriously, and we handle cases involving children with extreme precision and sensitivity. Many clients worry about how a judge or jury determines which parent should have custody. The Texas Family Code dictates that, when determining any decision on behalf of the children, a judge or jury shall be guided by the child’s best interest. A judge or jury cannot base their decisions on gender or marital status. Instead, the court examines a multitude of factors to determine what is in the child’s best interest.
A possession and access schedule is a specific schedule for families to follow so that the children and both parents have a predictable outline for when the children will be with each parent. Orders in Texas include language that these schedules are “in the absence of mutual agreement.” This means that the parents can agree to be flexible with the schedule if that works for their children and their family, but should they fail to reach a mutual agreement, there is a schedule to fall back on.
Possession and access schedules can vary greatly depending on the circumstances of the children. The court will look at evidence of both parents involvement in the children’s day-to-day lives, what the children are accustomed to, the special needs or circumstances of the children, and the distance between the parents’ homes (among many other factors), to determine what is in the best interest of the children.
In Texas, the vast majority of possession schedules contained in orders are Standard Possession Schedules. These schedules provide that the kids reside with one parent on Mondays, Tuesdays, and Wednesdays of each week and the second and fourth Fridays and weekends of the month, and the other parent on Thursdays of each week and the first, third and fifth Fridays and weekends of the month. The holiday and summer periods of possession are divided up equally between the parents.
In some circumstances, the court, or the parents by agreement, may make minor tweaks to the Standard Possession Order to make it work best for their children.
The Standard Possession Order is typically the schedule that courts impose for parents that can’t agree on a possession schedule on their own. Various circumstances may warrant a deviation from what is considered “typical,” and may require a further examination by the court to determine what is in the best interest of the children.
Some parents believe that a Standard Possession Order is not what is best for their kids. Others may allege that they have jointly and equally shared in raising their children during their marriage, and that should not change because they are divorcing. In these instances, some parents will request a possession schedule that provides equal amounts of time with both parents (a 50/50 schedule). There are many ways to craft a 50/50 possession schedule; parents may alternate weeks, divide the week in half and alternate weekends, or develop some other arrangement that divides time equally over the year.
Requesting any schedule that deviates from the Standard Possession Order is nuanced and fact specific.
Some circumstances necessitate a more creative approach to formulating a possession schedule. Some examples include when one parent is a pilot or first responder, and their work schedules are not consistent from month to month or even week to week. We can assist you in advocating for creative solutions that accommodate the children’s needs and your need to work and support your family.
When children are under the age of three, courts will also typically impose a creative schedule for possession. The courts believe that with small children, frequent and short periods of possession are considered best so that both parents can see the child regularly, bond, and allow the baby to form a healthy attachment to both parents. Factors such as nursing, co-sleeping, and the ages of other siblings can contribute to what schedule type is best for a child under the age of three.
These schedules can change over time. As the children get older and involve themselves in academic obligations and extracurricular activities, the possession schedule may need to be modified to reflect their preferences and schedules.
Unfortunately, many situations necessitate a more restrictive possession schedule to ensure the safety and well-being (both physical and emotional) of the children. These restrictions may be due to drug use, alcohol abuse, family violence, or an untreated mental impairment. The court may also impose limits on possession if a parent is a flight risk. In these instances, the court can order limited periods of possession and/or that the periods of possession be supervised by a professional that is adept in not protecting the physical safety of the children, as well as providing feedback and counseling on the emotional well-being of the children while in that parent’s care. Another option, specifically in cases involving drugs and/or alcohol, is a possession schedule that is contingent on the parent submitting to testing before and during periods of possession to ensure they are not under the influence of drugs or alcohol.
Fortunately, we have many means of assessing and addressing these circumstances. We understand that your child’s health, happiness, and safety are of the utmost importance, and we will use every tool in our power to advocate for your family as if they were our own.
In high-conflict cases and cases involving mental impairment, drug/alcohol issues, or physical abuse, a court-ordered psychological evaluation of the parents or a custody evaluation of the family may be appropriate. In Texas, courts may order a qualified psychologist to conduct a forensic psychological evaluation and child custody evaluation to determine the nexus between each party’s psychological functioning and parenting skills.
The evaluator will conduct interviews with parents, children, and additional caregivers, as well as collateral witnesses such as teachers, friends, and family members. Additionally, the assessment will include a thorough and detailed analysis of the child’s medical history, mental health, and education records. The custody evaluator will perform supplementary tasks and interviews to evaluate the functioning of the parenting and the impact of their parenting on the children and, ultimately, to make recommendations to the court.
In Texas, the court may appoint a guardian ad litem to advocate for the best interest of the child or to perform a task directed by the court. These tasks may include interfacing with court-ordered custody or forensic evaluators, acting as a spokesperson for the child’s care team, aiding the child, or managing other narrow tasks.
Great care must be taken to make sure that the guardian ad litem does not stray from their position’s initial, limited scope. Taking on additional responsibilities may impede on the roles of the evaluators and therapists for the parties and child, so it is crucial you hire a lawyer who understands the differences and the associated implications.
‘Conservatorship’ is how parents make decisions. In conservatorship, the three most important duties are the rights to make medical, educational, and psychological decisions for the child. These decisions can either be made jointly by agreement, independently by each parent, or allocated between the parties. For example, if one parent makes all medical decisions and the other makes all educational decisions, then the conservatorship is allocated between the two parents.
Additionally, the right to designate the primary residence of the child is determined by one parent or by a specific geographic boundary, and the right to receive child support may be awarded to one of the parents.
‘Child support’ is when an obligee (the parent receiving child support payments) is granted financial support from an obligor (the parent responsible for making the child support payments) to support the needs of their children. The Texas Family Code provides guidelines for the calculation of the support payment amount; however, the court can sometimes order above the guidelines. In certain circumstances, the court will consider altering the payment amount by examining evidence of the children’s proven needs (including, but not limited to, any special needs or specialized educational or health requirements).
While it can appear that child support is merely a mathematical equation, that is not always the case, so it is important to speak with a lawyer about the facts specific to your case and your children’s needs.
Modifying Child Support
Circumstances change, the needs of children change over time, and previous child support orders may no longer be appropriate and need to be changed to reflect the current situation of the family. A court can adjust the child support if the circumstances of the child or person affected by the order have materially and substantially changed since the earlier of the date of the order’s rendition, the date of the signing of a mediated or collaborative law settlement agreement on which the order is based, or it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines.
Additionally, if the court may modify an order if the parties agree to an order—under which the amount of child support differs from the amount stated by the guidelines— and the circumstances of the person affected by the order materially and substantially change
Enforcing Child Support
A child support order can be enforced when the payer fails to pay or pays late. Payment of child support is very important as the receiving parent typically depends on these funds to pay monthly expenses for the household. If someone does not pay in a timely manner (even if that person pays in full each month), their delay may be addressed with the court.
A petition for enforcement is a request to the court asking the court to force the obligor to make the previously ordered child support payments. Courts take child support very seriously and can impose severe sanctions for failure to pay, including jail time, suspension of driver’s or professional licenses, and monetary sanctions.
Many people think of kidnappings and child abductions as acts that occur at the hands of a stranger; however, many abductions are committed by someone your children know, and sometimes that person is a parent.
If a parent withholds or absconds with a child, there are legal remedies available, but they require swift and aggressive action on your behalf.
International Child Abduction is when a parent (who does not have the legal right to do so) moves a child to another country. The Hague Convention was created to provide children with protection against the adverse effects of abducting a child across international borders, and it aims to facilitate the quick return of children to the country of habitual residence.
The Hague Convention does not apply to all international abduction cases. To petition for the return of a child under the provisions of the Hague Convention, the following factors must be met:
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a uniform act used by all states (except for Massachusetts) that lays out guidelines for determining when a state court has the jurisdiction to make, alter, and enforce custody determinations. The UCCJEA determines if a state has jurisdiction over custody proceedings in several situations, including initial custody determinations, modifications of earlier orders, temporary emergency jurisdiction, and times when courts may decline to exercise jurisdiction.
This act is necessary because we are living increasingly mobile lives, and it is not uncommon for parents of a child to live in different states, especially after a divorce. The UCCJEA standardizes orders and ensures that they will not get changed based solely on one parent moving somewhere else.
Relocation is one of the most contested issues in a child custody case. When parties with children get a divorce (or separate if they’re not married), the court has the ability to impose a geographic restriction on the child’s residence. In other words, the court may determine the geographic area in which the child can live. A typical geographic restriction would be the county in which the divorce or custody case is filed and the surrounding counties. For example, if a divorce is filed in Harris County, Texas, the court will often require that the child remains in Harris County or one of the surrounding counties. The issue of the geographic restriction of a child can be broad (like the state of Texas), very narrow (like a specific school district), or somewhere in between (such as a county, several contiguous counties, or a city).
A Suit Affecting the Parent-Child Relationship is either a stand-alone lawsuit or the portion of a divorce that relates to child support, conservatorship (decision making), possession and access, and the right to determine the primary residence of the child (custody). We typically see these cases if parents that have never been married decide to separate and have never formally entered into orders concerning their children. A Modification is a lawsuit filed to modify a prior order.
Formerly completed cases follow a different procedure than original cases. Courts may modify an order involving children if modification would be in the best interest of the child and:
Under Texas law, when a couple gets a divorce, former stepparents usually have limited legal ability to maintain a relationship with a former stepchild. The law often views these parties as ‘interested third parties’ and allows them to petition the Family Law Court and formally request visitation, as this visitation is not automatic. If either biological parent objects to the visitation, the court will be inclined to deny visitation. The key word here is ‘inclined.’ After all, in some cases, that stepparent may be the only or the first mother-figure or father-figure in the child’s life—it wouldn’t be fair to deny the child access to them.
Although this type of case is difficult, if you are seeking legal rights to continued involvement with a stepchild, our attorneys have the experience necessary to provide you guidance inside and outside the courtroom during a time when the facts specific to your case matter more than anything. In some cases, the court may even grant visitation despite the biological parent’s objections. Factors the court may consider include the following:
The court will consider the factors listed above and the facts specific to the case to determine what is in the best interest of the children.
Biological parents aren’t the only people who advocate for the rights of children. When a parent dies, CPS becomes involved, or a parent is otherwise impaired, stepparents and grandparents can find themselves in the position of fighting for the best interests of children in their family. These parties face exceptional hurdles, but experienced attorneys like ours know how to navigate these seemingly insurmountable roadblocks. These cases are rare and incredibly specialized, so finding aggressive and experienced attorneys can be challenging. At Walters Gilbreath, we have the experience and the skills necessary to give you guidance regarding your rights and options to handle these difficult cases.