Child Custody

Many people come for their consults with me and say that they want “full custody” of their child. However, they are never sure what that really means. To me, that would mean that the other parent is really bad and they should not have any rights to the child. In reality, what it turns out to mean after further investigation is that most people just want to be sure that the child will live with them most of the time and that the other parent will have visitation.

In Texas, child custody has two different options. The default is joint managing conservatorship and it is addressed in Texas Family Code Chapter 153. Joint managing conservatorship, or JMC, is basically saying that both parties are good parents and can manage taking care of the children and working with each other (for the most part). If granted joint managing conservatorship, this means that both parents have independent, equal rights and duties with respect to the child. The only right that would differ would be that of the exclusive right to designate the children’s primary residence. This is decided on a case-by-case basis and it will truly depend upon the parties and their circumstances. For instance, if the mother stays home with the child all of the time, knows their routine, and is technically the primary caretaker as it is, then she most likely will be named primary unless there is a reason this would not be in the best interest of the child. Meaning, if she is smoking weed all day while feeding the baby the bottle, it might not be a good idea to allow mom to be designated as primary.

Delving more into that idea, the other type of conservatorship is sole managing conservatorship. This means that only one parent will have the major rights and duties with respect to child and the other parent will be named possessory conservator and will have limited rights and duties. The right that will stay is that of visitation, even if it is by supervision. This type of conservatorship is typically ordered in problematic cases where there has been sexual abuse of a child, physical abuse of a child, criminal history, drug usage, etc. Or, it could be that the other parent is just completely absent from the child’s life and would not do well if given the major rights and duties. It can also be ordered where family violence has occurred between the parents.

One important caveat is that if your child is twelve or older, he or she can choose which parent they want to live with primarily of the time. That is, if your child has expressed a desire to stay with you then please do let your attorney know this information. The attorney will then file a motion and have the judge meet with the child in chambers with nobody else present and the child can then let the judge know where they want to live. As long as this is not against the child’s best interest, then the judge will most likely honor the child’s choice. It is our experience that the judge does take the child’s statements seriously and will take them into consideration when making their decision.

The parent who is not named primary or sole will be responsible for child support, providing health insurance for the child, and 50% of the unreimbursed medical expenses. This is the bare minimum with respect to their duties. They will have a right to visitation and again, that will depend upon the circumstances of the particular case.