Understanding the Different Types of Child Custody

Divorce“No man’s life, liberty, or property are safe while the legislature is in session.”
~ Mark Twain or Gideon J. Tucker.

The Texas legislature meets every two years. Each legislature there are a plethora of bills introduced involving Family Law. One of the bills that came up this time was House Bill 453 which dealt with equal custody. It died in committee. This past weekend several supporters of HB 453 held a rally in Austin outside the capital building.

I believe Custody is very misunderstood. People frequently come into my office saying they want Sole Custody or Joint Custody or Full Custody or any number of other things. However in Texas we don’t even have custody. We have Conservatorship. Equally important, Custody and Conservatorship are not the same thing.

Conservatorship deals with rights and duties. It is defined in Chapter 152 of the Texas Family Code. For instance, who gets to see the report cards, who should know about and attend the choir concert, who should decide whether or not the child has their tonsils taken out. If you believe both parents should play a part in making these decisions, congratulations you believe in Joint Managing Conservatorship which is the standard in Texas.

Next the Family Code deals with Possession and Access. This is found in Chapter 153 of the Family Code. This is the section of the Family Code I believe people are talking about when they use the terms custody and visitation. Next time you have a copy of the family code search it thoroughly. You won’t find the words custody or visitation anywhere.

I will be the first to tell you the Family Code isn’t perfect. At times I don’t even think it is good. But, I think the legislature did its dead level best to make the best situation for children of a truly horrible situation. At a rally last weekend Shelly Toner, a child activist from San Antonio, speaking to the crowd said “When somebody wins custody, somebody loses, but children also lose,” “Moms can’t be dads, and dads can’t be moms.” I agree with her. But too often parents focus on winning and losing as parents. The court is charged with acting in the best interest of the children. Over the years I have handled literally thousands of cases involving children and I can tell you almost universally children want to live with both parents. But as a practical matter this is almost impossible to do with divorced parents except in the rarest of circumstances. A child will primarily reside with one parent and visit the other.

Here is where I think the legislature got it right. The standard possession and access order is just inconvenient enough on both parents that the only way everyone will be happy is if they cooperate and the standard possession schedule has that provision included: THE PARTIES SHALL HAVE POSSESSION OF THE CHILD AT ALL TIMES MUTUALLY AGREED TO IN ADVANCE. Failing mutual agreement, the following shall apply…. Thus the parents are free to do whatever they want. Additionally, and I think this is the part where litigants, lawyers, and even judges get lazy – the standard possession schedule is just there if you don’t take the time to craft something else. The judge is tasked with acting in the child’s (not the parent’s) best interests. The attorneys together with their client need to put together a schedule and present it to the judge that ensures the child has as much time as possible with both parents. According to David O’Connor a child and adolescent psychiatrist from Austin there’s a high connection of kids in the criminal justice arena, at risk for being in the juvenile justice system, at risk of being in the mental health arena and the lack of both parents involved. Equal parenting not only decreases that risk for the child, it decreases conflict among the parents, it decreases the litigation between divorced or unmarried parents.

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