Fort Worth Child Custody Attorney

A key decision in a custody case is determining the type of custody each parent will have. In Texas, instead of custody and visitation, the formal legal terms used are “conservatorship” and “possession and access.” These legal distinctions help define parental rights, decision-making responsibilities, and visitation rights.

Conservatorship

When parents separate or divorce, a decision must be made regarding who has the legal right to make major decisions in the child’s upbringing. The type of conservatorship assigned to parents will impact that parent’s decision-making authority, responsibilities, and parental rights.

• Managing Conservatorship
  Managing conservatorship grants a parent decision-making authority over the child, including where the child lives, their education, health care, and other major decisions.
• Possessory Conservatorship
  Possessory conservatorship grants a parent the right to spend time with the child, but they do not have the primary responsibility for making major decisions for the child.

Conservatorship designations include:

• Joint Managing Conservatorship (JMC)
  Both parents share decision-making responsibilities regarding the main aspects of their child’s upbringing. Courts prefer this arrangement to sole managing conservatorship unless there is a reason, such as a history of family violence or neglect.
• Sole Managing Conservatorship (SMC)
  One parent has the exclusive right to make decisions about the child’s welfare, including their medical care, education, and where they live. Sole managing conservatorship is typically granted in cases where the other parent has a history of domestic violence, neglect, or substance abuse.
• Possessory Conservatorship
  The parent with possessory conservatorship is considered the noncustodial parent. This parent still has parental and visitation rights but does not have the final say on most decisions.

Managing conservators, whether sole or joint, have the authority to make important decisions regarding their child’s upbringing. A sole managing conservator has the exclusive right to make these decisions, meaning they do not have to consult the other parent before making choices about the child’s care. However, Texas courts generally favor naming both parents as joint managing conservators unless it is not in the child’s best interests.

Another pressing concern during custody determinations is how much time each parent can spend with their child or have access to them. While this is commonly called physical custody and visitation or parenting time in other states, Texas law formally refers to this as possession and access, which focuses on a parent’s right to have scheduled time with their child.

• Possession refers to the physical custody of the child. A possession schedule outlines who the child stays with and for how long.
• Access refers to a parent’s right to maintain a relationship and involvement with the child (visitation) even when they are not living with or staying with that parent.

Possession

Texas courts typically follow one of the following possession arrangements:

1. Standard Possession
   A standard possession order is a common schedule that provides a basic framework for parents sharing physical custody, including regular visits on weekends, holidays, and summer breaks.
2. Expanded Standard Possession Order
   A variation of standard possession, expanded standard possession allows for more time with the noncustodial parent.
3. 50/50 Possession
   Parents agree to share equal periods of possession.
4. Modified Possession Schedules
   Parents can agree to a customized schedule that works best for their situation, provided the schedule serves the child’s best interests and receives court approval.

Whether possession is determined through a Standard Possession Order or a more customized schedule, courts seek to create a balanced arrangement that best serves the child’s interests and well-being while accommodating parents’ schedules.

Access

Access refers to a parent’s right to spend time with or stay involved with their child, even when they don’t have physical custody at that moment. This can include phone communication, video chats, attending school or extracurricular events, or receiving regular updates about the child’s education, health, and well-being. Access is an important part of maintaining a strong parent-child relationship, especially in situations where one parent has less parenting time or lives in a different area.

While Texas law generally assumes that contact with both parents is beneficial for a child, if there is evidence that one parent poses a risk to the child’s health or well-being, the court may order a neutral third party to supervise visitation.

Texas courts prioritize what is in the “best interests of the child” when making child custody decisions. Understanding this can help parents make informed decisions and prepare for custody proceedings.

Primary factors Texas courts will consider when making custody determinations include:

• The child’s emotional and physical needs
• Each parent’s ability to provide a stable, nurturing home, including factors such as housing, employment, and overall living conditions
• The ability of each parent to care for and support the child
• Each parent’s involvement in the child’s education, healthcare, and extracurricular activities
• The child’s relationship with each parent
• Both parents’ mental and physical health
• Any history of parental alienation, or the attempt to damage the child’s relationship with the other parent
• Sibling and family relationships
• The geographic proximity of both parents
• Any history of family violence, substance abuse, or neglect
• A parent’s ability to demonstrate a willingness to co-parent and encourage a healthy relationship between the child and the other parent
• If the child is 12 or older, the court may consider the child’s preference, although it will not be the sole determining factor.

Texas courts carefully weigh these factors to ensure that custody arrangements support the child’s well-being and long-term stability. Each case is unique, and judges can also consider additional circumstances that may impact the child’s best interests.

What if There is a History of Domestic Violence, Neglect, or Substance Abuse?

To obtain sole custody in Texas due to a history of domestic violence, neglect, or substance abuse, a parent must provide evidence demonstrating that awarding joint managing conservatorship would not be in the child’s best interests. This is common in cases involving a history of domestic violence, neglect, or substance abuse by one parent.

The court will consider evidence such as police reports, medical records, testimony from witnesses, and documentation of any prior neglect or abuse. If the judge determines that the other parent poses a danger to the child, they may award sole managing conservatorship to the requesting parent, granting them full decision-making authority. However, the other parent may still receive restricted or supervised visitation rights.

Even with a court-ordered custody arrangement, conflicts can arise when one parent refuses to comply. In these cases, Texas law provides options for enforcement to ensure both parents adhere to the agreed-upon terms.

Seeking enforcement of a custody order may be warranted when the child’s safety or well-being is at risk due to neglect, abuse, or substance abuse by the non-compliant parent. It may also be justified when one parent repeatedly violates the agreement, such as consistently denying visitation, refusing to return the child as scheduled or making decisions without the necessary authority.

If a parent refuses to follow the custody order, the other parent may be able to take legal action by

• Filing an enforcement motion
  This motion asks the court to hold the violating parent accountable.
• Seeking contempt of court
  If a parent deliberately disobeys the custody order, they may be found in contempt of court. Consequences can include fines, mandatory makeup visitation time or even jail time in extreme cases.
• Requesting supervised visitation
  If the court determines that one parent is not acting in the child’s best interests, such as in cases of neglect, substance abuse, or other concerns, visitation may become restricted or supervised.
• Involving law enforcement
  In some cases, when a parent refuses to return the child as outlined in the custody order, law enforcement can intervene to enforce compliance.

However, there may be times when seeking enforcement may not be justified. For instance, in cases of minor infractions, such as occasional tardiness in custody exchanges or miscommunications regarding schedules, parents are encouraged to resolve minor disputes through communication or mediation before escalating to legal action.