Child Custody and Visitation

Custody / Conservatorship

Custody is referred to as conservatorship by the courts. The two terms are used interchangeably in this section.


When non-attorneys use the term "joint custody," they tend to mean "equal time." When attorneys use the term "joint custody," we generally mean "equal rights." This is an important distinction when discussing custody because most parents in Texas are named Joint Managing Conservators of their children. This means they have equal rights -- both parents can talk to their children's doctors and teachers, both parents can attend school activities, both parents get to be parents. This does not mean they have custody of their children for the same amount of time. The specific rights of each parent will be outlined in the order, including which parent the children will primarily reside with and  will pay child support.


Naming parents Joint Managing Conservators is the default in Texas. This means that parents will be Joint Managing Conservators unless there is a reason they should not be. Child abuse or neglect, a history of family violence, and drug use are some of the reasons which would cause a court not to name the parents as Joint Managing Conservators. In this case, one parent would be named Sole Managing Conservator and the other parent Possessory Conservator. This generally means that one parent (Sole Managing Conservator) gets to make the decisions. The other parent (Possessory Conservator) still gets to know what's going on, but they do not get to make any decisions.


The parent requesting to be named Sole Managing Conservator has the burden to prove their case as to why the parents cannot be named Joint Managing Conservators.

Visitation

Visitation is referred to as possession and access by the courts. This is because a non-custodial parent is not "visiting" with their children; they have possession of them. They are not babysitting, watching, borrowing, or otherwise visiting their children; they are helping to raise their children. Although this is a more accurate term, I will refer to it as "visitation" in this section so as to avoid confusion.


An order which establishes conservatorship (custody) must also include orders for possession and access (visitation). The public policy of Texas is that children should have frequent and meaningful contact with parents who have shown they will act in the children's best interest. In the simplest terms, when parents are parents, their children benefit by having them in their lives.


A standard possession order (SPO) is the most common schedule for visitation ordered by the Court. This schedule is presumed to be in the best interest of the child, although it may be changed as needed to fit the specific circumstances of the parents and children, including work schedules and the ages of the children.


Under an SPO, the non-custodial parent (NCP) has visitation with the children beginning at 6:00 pm on the 1st, 3rd, and 5th Friday of each month  and ending at 6:00 pm on the following Sunday. I always recommend parents stop referring to the 1st, 3rd, and 5th WEEKEND, and start referring to the 1st, 3rd, and 5th FRIDAY. This will avoid the disagreements that always happen when the month begins on a Saturday or Sunday.  


In addition to the above weekends, the NCP will also have the children from 6:00 pm to 8:00 pm EVERY Thursday during the school year and for 30 days during the summer. Parents alternate Christmas, Thanksgiving, Spring Break, and other holidays.  Mothers will always have the children on Mother's Day Weekend and fathers will always have the children on Father's Day Weekend.  


The SPO can be adjusted as needed to account for the needs of the children and parents. For example, if the children have an after-school activity every Thursday until 7:00 pm, the NCP's mid-week visitation can be moved to Tuesday. 


If children are under the age of 3, the court will generally provide an alternate visitation schedule which provides the NCP with more frequent visitation for shorter periods of time. For example, instead of taking the child for 30 days in the summer, the Court may order the NCP to have the child for 4 one-week periods.


It is important to note that Courts generally want parents to co-parent, which means to work together to do what is best for their children. Because of this, the Court will approve most custody and visitation agreements made by the parents, so long as they are reasonable. For example, a Court may approve an agreement whereby the children spend a week with each parent, alternating throughout the year, so long as the children are attending the same school and the parents live reasonably close to each other. However, the Court will not approve an agreement whereby the children spend 6 months with one parent in Texas, followed by 6 months with the other parent in California.

Establishing Paternity

There are many reasons why it may be necessary to establish paternity. The most common reasons for needing to establish paternity are (1) the mother was married to someone other than the father; and (2) the father was not included on the child's birth certificate.


A child born during a marriage is presumed to be the child of the husband and wife. This becomes a problem when the mother is married to someone other than the father. The most common situation is the husband and wife have been separated for years, but they never got around to getting divorced. In this case, both the husband and biological father must sign an Acknowledgment of Paternity (AOP). By signing the AOP, the biological father is saying he is the father and the husband is saying he is not the father. This is sufficient to add the biological father's name to the child's birth certificate and makes the biological father the "legal" father.


But what happens when the husband is nowhere to be found? As is often the case, couples often lose contact with each other after they separate. Without the husband's signature on the AOP, the biological father must prove he is the father. As expected, this entails a court filing and DNA test.


The second scenario occurs for many reasons which generally revolve around some variation of the mother not wanting the father's name on the birth certificate or the father not believing he is the father. In either case, either parent may file and request a DNA test to prove paternity. 


Disproving paternity is accomplished in the same manner. A man who believes he is not the father of a child may file to disprove paternity. However, this type of case has very strict time limitations. If you believe you are not the father of a child, it is important that you speak with an attorney as soon as possible.

Child Support

Parents have a duty to support their children. The amount of child support paid from one parent to the other is calculated based on the income of the non-custodial parent and the number of children involved.


The non-custodial parent will pay 20% of their income to the custodial parent for one child. This percentage increases by 5% per child. This percentage decreases if the non-custodial parent has additional children whom he has a duty to support (additional child support order or children with a new spouse). 


The non-custodial parent will also be required to provide medical insurance for the children. If insurance is available through an employer, they will be required to enroll the children in an insurance plan. If insurance is available through the other parent's employer, they will be required to reimburse the other parent for the cost of the premiums for the children. If neither parent has access to insurance at a reasonable rate, the children must be enrolled in Medicaid or CHIPS, and the non-custodial parent will be required to reimburse the state for these services.


If you would like an estimate of what child support would be in your case, click here to visit the child support calculator created by the Office of the Attorney General.