Myth Busters – Custody Battle
Clients always have preconceived notions of what the laws are when it comes to child custody disputes. Unfortunately, some of their notions are nothing more than common myths.
This week we will take the time to dispel a few of the most common “myths” we encounter in our law practice.
I Want “Full Custody” of My Kids.
There is always some confusion when custody of children is involved. There is no such thing in Texas as “full custody.” Under Texas law, we use the terms “conservatorship” and “possession and access,” which concerns a parent’s rights, duties, and visitation time with the children.
Conservatorship deals solely with the rights and duties of each parent in regards to the child; for example, the duty to pay child support, the right to make decisions concerning the child’s education and healthcare, etc. A parent may be appointed as a sole managing conservator, a joint managing conservator, or a possessory conservator.
A sole managing conservator is granted the right to make key decisions concerning the child without consulting the other parent first. Joint managing conservators must make decisions together and consult with the other parent, to the extent possible, before making any major decisions concerning the child. Both are entitled to possession of and access to the child as ordered by the court.
Possession and access on the other hand, concerns a parent’s right to spend time with their child. It is the public policy of Texas to ensure that all parents who have shown that they can act in the best interest of the children have continuing contact with their child. There is a rebuttable presumption under Texas law that it is in the best interest of the child that the parents be appointed managing conservators of the child. If it is determined by a court that a parent should not be appointed as managing conservator it is then presumed they should be appointed as a possessory conservator.
In most instances, a person who is seeking “full custody” is seeking the right to make decisions for the child, and to spend the most time with the child. Therefore, they are seeking primary conservatorship as well as the right have the child live with them.
No Child Support, No Visitation
We often get calls from individuals who have been denied visitation because they didn’t pay their child support or who want to withhold child support because their ex won’t let them see their children. In Texas, child support and visitation are two separate beasts and are in no way dependent on each other.
Any violations of a court order regarding child support or visitation may be enforced against the parent at fault. If a parent is withholding visitation, the other parent can seek criminal and civil contempt against that parent and request jail time, probation, and/or fines (including attorney’s fees). Similarly, if a parent is not paying child support, the other parent’s remedy is to seek enforcement, and punishment such as contempt, fines and jail time.
It is important to note, that if a court finds that a parent has failed to make child support payments as ordered or has prohibited visitation with the child, the court SHALL (must) order the person in violation to pay the reasonable attorney’s fees of the other parent, as well as court costs. A separate child support payment will be ordered, in addition to the current support payment, to allow that parent to make up the any child support arrears they now owe.
A parent should not take matters into their own hands and withhold visitation or child support based on the behavior of the other parent. Always remember that the best interest of the child is at stake and withholding support or visitation is rarely in the child’s best interest.
If I Get Married, Will that Help My Case?
There is a myth that single parents are not as stable as those that are married. Occasionally we get a client in our office that is engaged and wonders if getting married quickly will make them look better in the eyes of the Judge/Jury.
The Texas Family Code, however, specifically states that a court may not consider marital status or sex of the party or child in determining who to appoint as sole or joint managing conservator and any terms and conditions of conservatorship and possession of, and access to, the child.
This thought often leads into another myth, that mother’s always get the children in Texas. While it is true that more mothers than fathers are given the right to designate the primary residence, it is untrue that it is impossible for a father to get primary custody or be granted sole managing conservatorship.
As stated above, the court must make any and all determinations concerning conservatorship and possession and access based only on what is in the child’s best interest .
No one can ever be 100% prepared for what is to come during a custody dispute. However, the myths above should never hinder a parent from fighting for their parental rights. If these fears have been holding you back, contact your family law attorney today and talk to them about your situation.
If you have other fears not mentioned here, again, contact your family law attorney who may be able to dispel them as myths and help you move forward with your custody case.
–Authored by Kayla R. Wimberley, Esq.,
Matthew Harris Law, PLLC – Family Law Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479