One of the factors that fuel a bitterly contested divorce is the children custody. No parent wants to relinquish the sole possession and management of the kids. A Houston divorce lawyer once said that divorces would not be such a big legal headache if all divorces exempted the minors. Since kids cannot be set apart in a divorce case, the Family Law has been very clear in Texas, and by extension the United States about what happens to the kids during the divorce proceedings and after the final divorce decree.
Which Parent should get Custody?
The Law is not clear who should get custody until the trial gets underway. Parents are advised to agree as this reduces the bitterness that accrues during and after the divorce. You do not want a judge to come into a custody debate. He will make both your lives a lot more difficult. Temporary orders are usually issued with regard to where the children stay and access of the children by either of the parents. This does not mean that you have custody though. What it means is that every parent has a right to access the children until the divorce is final. The children’s residence should remain the same and no parent can refuse the other parent access to the children.
What is Children Custody?
In Houston, the word custody is used to mean the primary custody by a sole managing conservator. Primary custody means that a parent has the right to decide on issues that affect the children such as residence, healthcare, schooling, holidays among others. A managing conservator is the one who makes all this decisions. Never confuse the word custody to mean the right to stay with the children. This is not what it means.
As of September 1995, the law deemed this inequitable and scrapped the sole managing conservator and replaced it with the Joint Managing Conservator to encourage agreement between the divorcing partners. What this means is that the rights are to be shared by agreement and only after inability to agree does the judge steps in to make the law provisions clear. The parents’ conservator rights are to be discussed and agreed upon. Then the agreements are supposed to be written and presented to the judge in order to be put in the final divorce decree. If the parents do not agree, the concept of standard visitation arises.
In this case, the parents are encouraged to agree on visiting schedule and then present it to the judge so that it can be part of the final divorce decree. Failure to agree brings in the concept of standard possession.
Standard Possession Order
This gives the parent who is not primarily staying with the children several rights. If the parents stay within a 100 miles radius of each other, then this parent gets:
- 1st, 3rd and 5th weekends of every month with the children from Friday 6 PM to Sunday 6PM, or as the school timing allows,
- One weekday night from 6PM to 8PM,
- Alternate with the parent that stays with the kids the Thanksgiving and Spring break Holidays,
- One week at Christmas and 30 days of summer breaks.
If the parents live beyond a 100 miles radius of each other, then the parent who do not stay with the kids get:
- Weekdays and weekends visitations can be modified or omitted altogether
- He/she gets all spring breaks and 6 weeks on summer school holiday.
A Houston divorce lawyer should advise you when to raise red flags about the standard possession orders. In such cases the concept of restriction above standard possession arises where a spouse may protest that the other parent cannot take good care of the kids. In such cases, the parent that does not have residence possession over the kids will be required to have possession under supervision and will not get overnight stays. Where the children are below 3 years, these rules apply automatically.
ABOUT THE AUTHOR
Michael Busby Jr. is a Divorce, Family Law, & Houston Divorce Lawyer, who practices in Harris County Texas and the counties that surround Harris County, Texas. He has been in practice for over 11 years and has tried over 100 cases. He is familiar with the policy and procedures of the Harris County Texas Divorce Courts. Our office is open until 8:30 p.m. on Wednesdays and Saturday from 9 a.m. to 1 p.m. for working folks.
Michael Busby Jr.
2909 Hillcroft Suite 350
Houston, Texas 77057
Visit me on the web at www.busby-lee.com