Divorce Info – Custody & Visitation

1.  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.

2.  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.

3.    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.

4.    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.

5.    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.

6.    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.

7.    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 12 years of age or older.

8.    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).

9.    How can I get the custody and/or visitation provisions of my divorce decree changed?
By filing a Motion to Modify.

10.    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).

11.    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.

12.    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.

13.    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.