HOUSTON DIVORCE & CHILD CUSTODY ATTORNEYS
Standard Child Custody, Possession, & Visitation
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If you have children and you are going through a divorce or contemplating going through a divorce, you need to be aware of the laws governing possession and conservatorship. In times past, it was usually the mom who retained the children with dad paying child support and having visitation awarded through the court. Today, things are markedly different. No longer can you presume that the mom will get the kids. In determining whether the father or the mother should be the managing conservator and possession, the court will determine in the best interest of the child. The Houston Child Possession Lawyers and the Houston Child Custody Attorneys at the Law Offices of Steven Tuan Pham can assist you in your child custody battle and to assist you obtaining your right to be the managing conservator for your child. The decision to file a divorce petition and to fight for your custodial right is difficult, emotionally and legally. You should not have to travel down this path alone. We encourage you to contact our Houston Family Law Lawyers and our Houston Divorce Attorneys to obtain a detail consultation or if you have any questions. Our attorneys can be reached at 713-517-6645.
Texas law supports joint conservatorship and does not use gender as a factor in determining conservatorship and possession. Joint managing conservatorship does not require each parent to share equal periods of possession of and access to the child. Texas courts have held that “A father who steps forward, willing and able to shoulder the responsibilities of raising a child should not be required to meet a higher burden of proof solely because he is male.” Going further, Texas courts also are not supposed to consider the marital status of the parent in deciding conservatorship. However, the courts can consider the lifestyle of the parent and how it will affect the child in determining conservatorship. The overriding factor considered by the court in conservatorship cases is what is in the best interest of the child. Texas Family Code §153.002 states: “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Trial courts in Texas have wide latitude in determining “best interest” and will only be overturned when “it appears from the record as a whole that the court has abused its discretion.”
In the event the parties cannot agree to a possession and conservatorship scheme, there is a default position the courts can take to decide for the parents. Texas law provides a framework within which to determine conservatorship of and access to children called a Standard Possession Order. The Standard Possession Order can be found in section 153.311 of the Texas Family Code. This code section provides a default scheme for possession and conservatorship if the parties cannot agree otherwise. That is, in the absence of parental agreement, the Standard Possession Order controls.
The Standard Possession Order (SPO) is incorporated verbatim in the majority of final divorce decrees. Oftentimes, it is lifted straight from the black-letter law of the Texas Family Code. The provisions of the SPO are separated into two general categories – parents who live one hundred miles apart or less and those who live further away. However some provisions of the SPO are not affected by distance, like holiday possession. Keep in mind that, if the parents can agree to holiday possession, the SPO can be looked at as a back-up plan.
The SPO not only determines possession and access to the children, but it sets forth the rights and duties of both the possessory and managing conservators. In a joint managing conservatorship scheme, the parents have the same rights and duties, except one parent has the right to determine the primary residence of the children. However, in a situation wherein there is a sole managing conservator designated in a final decree, the rights and duties of the parents aren’t shared equally.
In cases where a child who is the subject of a suit affecting the parent-child relationship is under three years old, the court “shall render a prospective order to take effect on the child’s third birthday, which presumptively will be the standard possession order.” This rule is particularly important in a situation wherein the parents live more than one hundred miles apart or live in another state. In considering an order, other than a standard possession order, for the possession of a child like in cases where the child is under three, the court will consider the guidelines under the standard possession order and can consider “the age, developmental status, circumstances, need and the best interest of the child” along with the circumstances of the managing conservator and that of the parent named the possessory conservator” along with “any other relevant factor.” Of course, if the best interest test is met, the court can enter an order for periods of possession that varies from the standard possession order based upon the agreement of the parties.
Under certain circumstances, the court may order reasonable possession of and access to a grandchild by a grandparent. Some of the situations where a court can grant access to a grandchild are when at least one of the biological or adoptive parents have not had parental rights terminated and the grandparent overcomes the presumption that the parent denying access to the child acts in his best interest in that providing access to the child by the grandparent would significantly impair the child’s physical health or emotional well-being. There are other conditions wherein the court can order grandparent visitation and access based. Grandparents seeking access to a grandchild can file a suit seeking access in an original suit or in a suit for modification whether or not the suit seeks an appointment of a managing conservator. However, a grandparent cannot request possession or access to a grandchild if each of the biological parents of the grandchild has died; has had that person’s parental rights terminated; or has executed an affidavit relinquishing parental rights under Chapter 161 (Termination of the Parent Child Relationship) and has designated an authorized agency, licensed child-placing agency or person other than the child’s stepparent as the managing conservator of the child and the grandchild is adopted or is the subject of a pending suit for adoption by a person other than the child’s stepparent.
If you are considering a divorce and you have children, you and your spouse can agree to a specific conservatorship plan for the kids. However, depending on the situation, such an agreement may take time. Or, you can let the court decide the rights and duties of the parents. Either way, you need to know what your legal options are. If you are in this situation, contact a Family Law lawyer at the Law Offices of Steven Tuan Pham at 713-517-6645 to schedule a consultation.
Texas Family Law and Divorce have numerous complicated issues, especially when it comes to spousal support, alimony, and the division of community properties such as real property and retirement accounts that cannot be easily "divided." In addition, matters only complicate more when there are minor children involved. This is exceptionally true when the parties do not agree with child custody, child support issues, and visitation rights. When facing these difficult issues, you need to consult with an experienced Houston Divorce Attorney or an experienced The Woodlands Divorce Lawyers at the Law Offices of Steven Tuan Pham Our Houston Divorce Law Firm assists clients in Harris County, Montgomery County, Fort Bend County, Brazoria County, Galveston County, and Liberty County to resolve their family matters. We also assisted a number of clients in resolving their divorce out of court through uncontested divorce and collaborative law. Please contact our Houston Family Law Attorneys and our Houston Child Support and Custody Lawyers for more information and see how we can help. You can reach our family law attorneys at 713-517-6645 or complete our Online Contact Form.
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