Child Custody - Conservatorship, Possession, Visitation and Child Support

Q: I am most concerned about the well being of my children. What kind of custody order can I expect in the divorce decree?

A: The divorce decree addresses several issues regarding child custody. The first question is "who will have primary control over decisions regarding the child's upbringing?" This includes decisions like where to send the child to school, whether and which church to raise the child in, major medical decisions, etc.

The parent who has control over major decisions is said to be the "managing conservator" of the child. A standard divorce decree will name both parents as "joint managing conservators." This means each parent shares joint decision making authority over the children with the other parent.

Occasionally a court will name one parent as "sole managing conservator." This essentially gives one parent complete control over the child's upbringing. The court will name one parent as sole managing conservator if the court determines that this is in the best interests of the child. The court might make such a determination if one parent has a history of recklessly immature or irresponsible decision making, such as chronic substance abuse, criminal behavior, etc.

Q: I simply cannot get along with my spouse. Trying to make decisions together regarding our child will be impossible. Can I ask the court to name me as sole managing conservator to avoid the hassle of dealing with my ex?

A: "Best interests of the child" is the controlling standard in family court. The court will make decisions regarding conservatorship based on the best interests of the child, not on the wishes or conveniences of the parents. The judge will start off with an overwhelming presumption that it is in the best interests of the child to have both parents involved in the child's upbringing. The judge will not deviate from this accepted standard unless one parent shows by "clear and convincing evidence" that it will be in the child's best interests to do so. So, most likely the court will expect that, when it comes to matters of raising your child, you and your ex-spouse will set aside your personal differences to cooperate with decision making.

Q: Where will my child live? Will my child be shuffled back and forth between two households? How much visitation is my ex-spouse entitled to?

A: One parent will have primary custody. The child will live with that parent. The other parent will have rights to possess the child according to a visitation schedule that is either agreed to between the parents or ordered by the court.

The parent with primary custody is called the "primary conservator", or more technically the "managing conservator with exclusive right to determine the residency of the child." The parent who does not have primary custody but instead has the right to possess the child according to a visitation schedule is referred to as the "possessory conservator."

Q: Does the mother always become the primary conservator?

A: Historically judges have shown a preference for giving primary custody of the children to the mother. However, times have changed, and legally the court is bound to do what it determines to be in the best interests of the child, after a careful review of the evidence before it. It is certainly not unusual for a judge to give primary conservatorship to the father if he is convinced by clear and convincing evidence that it would be in the best interests of the child.

Q: If my spouse gets primary conservatorship over our child, how often can I expect to see my child?

A: Standard visitation for the possessory conservator is Wednesday evenings; first, third and fifth weekends of each month beginning on Friday evening at 6:00 P.M. and ending on Sunday evening at 6:00 P.M.; and even numbered holidays such as Christmas, Thanksgiving and spring break.

The visitation schedule is subject to negotiation. Often spouses work out an agreed visitation schedule for the final decree that is different from standard visitation. Also, the visitation schedule set forth in the final decree is a default schedule. Even after the decree is rendered, parents are free to work out changes to the schedule on a case by case basis. Anytime the parents cannot agree on visitation, the schedule in the decree controls.

The standard visitation schedule only applies if the parents both live within 100 miles of one another. If the parents live more that 100 miles apart, a different standard visitation schedule applies.

Q: I am afraid that my spouse will get primary custody of our child and move far away. Can this be prevented?

A: A primary conservator's right to determine the residence of the child is almost always subject to a geographical restriction. This means that the primary conservator cannot move the child more than 100 miles from the possessory conservator without the possessory conservator's permission.

A geographical restriction is standard to a custody order. Typically, if the parent with primary custody wants to move more than 100 miles away, they will forfeit their status as the primary conservator, and the child will go to live with the other parent. This is due to the fact that judges tend to believe it is in the best interest of the child to not be displaced and to remain living near their friends and family.

If the primary conservator wants to move far away and wants to take the child with them, they can ask the court to waive the geographical restriction. A judge will only waive a geographical restriction on the primary conservator's right to determine the residency of the child if the judge is convinced by clear and convincing evidence that this would be in the best interests of the child, after a careful review of the evidence.

Q: My ex is abusive, psychotic and dangerous. I don't want my ex to have anything to do with our child. How can I limit the role my ex plays in our child's life?

A: The judge can make you sole managing conservator, giving you complete control over all major decisions concerning your child.

If the court finds that being alone with your ex would constitute a danger to your child, the court can order that your ex only be allowed supervised visitation. In other words, the court can order that your ex not be around your child unless some other person such as a grandparent is present.

In the most extreme of circumstances, the court can actually terminate a parent's parental rights.

Supervised visitation, and especially termination of parental rights, are extreme remedies that the court grants in extraordinary circumstances. A judge will order supervised visitation or termination of parental rights only if the judge is convinced by clear and convincing evidence that such an order would be in the best interests of the child, after a careful consideration of the evidence before the court.

Q: If the judge signs a decree regarding child custody and conservatorship, is the decree permenant? Can I ask the court to change the decree later on if I don't like it?

A: Either party at any time can file a petition to modify a standing child custody decree. In order for the court to consider such a petition, some material change must have occurred since the previous decree was entered. A material change can be a change of residence, the remarriage of a parent, or some other significant event that potentially affects the child. The party filing the petition to modify has the burden to present evidence to the court showing that some material change has taken place.

Q: I am to be the primary conservator. My child will live with me. Is my ex obligated to pay child support to help me cover the expenses of housing and feeding our child?

A: Yes. The possessory conservator pays child support to the primary conservator as a way to help defray the cost of support the child's household.

Q: How much child support am I entitled to?

A: Child support is calculated according to a fixed schedule that calculates the amount based upon the income of the possessory conservator and the number of the possessory conservator's children living with the primary conservator. The possessory conservator is required to pay 15% of his net (after tax) income for the first child, and 10% for each additional child, up to a maximum of 40% of his total net income as child support.

Q: My ex got a new job and is making more money. Am I entitled to an increase in child support?

A: The primary conservator may petition the court to modify the child support amount once every two years.

Q: My ex's parental rights were terminated. Am I still entitled to collect child support from my ex?

A: No. Once a parent's parental rights are terminated, the parent is under no further obligation to pay current or future child support. The terminated parent can still be required to pay back child support owed from before the termination became effective.

Q: I have never been married to the other parent of my child. Can I ask the court for a decree regarding child custody and child support even though there is no divorce?

A: Yes. Even if you have never been married to your child's other parent, you can still petition the court for an order decreeing conservatorship, possession and child support. Such a petition is referred to as a "Suit Adjudicating the Parent-Child Relationship", or SAPCR.

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To discuss your divorce in greater detail, please call one of our attorneys in Dallas at (214) 742-6400, or in Fort Worth at (817) 877-9944. We can walk you through the process and answer any questions you may have. It is our pleasure to serve our clients