CUSTODY AND
VISITATION QUESTIONS AND ANSWERS
- How do the Courts determine custody?
The best interest of the child
is always the primary consideration of the Court in determining the
issues of conservatorship and possession of and access of the child.
- Isn't it true that the Courts favor the female spouse
having custody of the children?
By law, Courts shall consider
the qualifications of a spouse or party without regard to their
marital status or to the sex of the party or the child in
determining whether to appoint either parent or party as the a sole
managing conservator or appoint the parties joint managing
conservators.
- What is joint conservatorship?
First, to remove an erroneous
definition, joint conservatorship does not mean (necessarily) that
one parent has the child half of the time and the other has the
child the remainder of the time. Although a joint managing
conservatorship can consist of a an equal split in possession of the
child, it can equally consist of one parent having the child the
majority of the time and the other parent having
visitation/possessory rights that are much less than half. Joint
managing conservators means that both conservators (parents) share
in the major decision making rights, privileges, duties and powers
held by the parent pertaining to the child such as the right to
establish the primary residence of the child; the right to consent
to medical, dental, and surgical treatment, the right to receive and
give receipt for periodic payments of support for the child; the
right to represent the child in legal actions; the right to consent
to marriage or enlistment in the armed forces; and the right to make
educational decisions, to name a few.
- Where will the Courts start with regards to
conservatorship?
Texas has enacted a
presumption that parents should be joint managing conservators. Of
course, this presumption is rebuttable. The presumption is based on
the notion that it is most times in the child's best interest to
have both parents play a major role in all aspects of the child's
life.
- Under what circumstances can the joint managing
conservatorship presumption be rebutted? How can I avoid joint
managing conservatorship and be named sole managing conservator?
The presumption can be
rebutted by showing that a joint managing conservatorship
arrangement is either not workable between the parents (i.e. you
cannot make decisions together regarding the child) or a showing
that joint conservatorship would not be in the child's best
interest.
- At what age can a child sign an affidavit choosing a
managing conservator?
At age twelve (12) a child
may, in writing, inform the court of his/her choice of managing
conservator and the Court will consider that along with other
evidence relating to what is in the child's best interest in making
a decision.
- Can a child testify at a custody trial?
In a nonjury trial, the Court
may interview the child in chambers to determine the child's wishes
if the child is 10 years of age or older.
- What is a standard visitation order?
The complete terms and
provisions of a standard visitation order may be found in the
Texas Family Code, Chapter 153.311 et seq, Subchapter F (inclusive).
- How can I get the custody and/or visitation provisions
of my divorce decree changed?
By filing a Motion to Modify.
- I have specific days and times for visitation but my ex
refuses to allow me to see our child on those days.
What can I do?
File a motion for
contempt (enforcement). Enforcement FAQ's.
- May I stop child support payments if I am not allowed
visitation?
No. The payment of child
support is not an exchange or condition precedent to you having
visitation. The proper procedure would be for you to file a motion
or contempt. See Enforcement FAQ's.
- I'm not receiving the child support as ordered, may I
deny visitation from my ex?
No. A conservator's right to
exercise is not conditioned on whether he/she pays child support as
ordered. The proper procedure would be for you to file a motion for
contempt. See Enforcement FAQ's.
- I will have my child for 30 days during the summer, must
I still pay child support during that time?
Unless your divorce decree or
court order specifically says otherwise, you would continue to pay
child support during that 30 day period.
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