Sunday, March 28, 2010

Child Possession and Access - Part 1 of 5 Top Issues in Divorce

This series explores the top five issues that most people must work through
when obtaining a divorce in Texas.

#1 - Child Possession and Access


Children Need Relationships with Both of Their Parents
“The public policy of this state is to (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.” Tex. Family Code 153.001(a).


This thunderous pronouncement introduces the chapter of the Texas Family Code that sets out the legislative guidelines and rules for possession of and access to children whose parents do not live together. The legislature felt so strongly about the importance of children having contact with their parents that it specifically disconnected the rights and responsibilities of child support and possession and access: Even if a parent fails to pay child support, all other things being equal, that parent cannot be prevented from seeing his or her children. Tex. Family Code 153.001(b).


Best Interest of the Child
In family law cases, courts have considerable latitude in all aspects of court proceedings because the “best interest of the child” is always “the primary consideration” in determining rules for possession of and access to children in a suit affecting the parent-child relationship. Tex. Family Code 153.002.


Gender Neutrality
The rules, as written, are gender-neutral. Courts are not allowed to use marital status of the parent or gender of the parent in determining which party to designate as a managing conservator or to determine the terms and conditions of possession of or access to children. Tex. Family Code 153.003.


Even though the legislative langauge is not overtly gender-biased, the fact is that final orders from the court can seem to favor mothers over fathers. One reason for this is the ancient "tender years doctrine" which holds that young children simply need to spend more time with their mothers. It's an old idea that has less currency today, but that influence is still out there.


Another reason is that the primary wage earner tends to be the father and if one of the parents stays home to raise the children, most often it is the mother. When a judge is rendering an order for possession and access because the two sides were not able to reach agreement between themselves, it is easy for a judge to render an order that honors the status quo--that is to keep the children with their primary care-giver, i.e. their mother.


Explained more formally: The best interest of the children is the guiding principal. If minimizing disruption is in the best interest of the children and the best way to do that is to keep the children with their primary care-giver (usually their mother), given the blunt tools provided to judges by the legislature, a bias in favor of children spending more time with their mothers is inevitable.


However, with both parents often having to work after divorce, even if they didn't both work before divorce, strong arguments can be made that children should spend equal amounts of time with both parents.

Consequences of Physical Abuse
The court MUST consider evidence of physical abuse by a party against that party’s spouse, a parent of the child before the court, or any person under the age of 18 where the alleged abuse occurred within two years of when the divorce was filed. If the Court finds that one of the party’s has committed certain acts of abuse, that party cannot be named a managing conservator of the child. And where there is proved that a party has engaged in a pattern of physical abuse, the court may (and likely will) order that the abuser’s periods of visitation be supervised in order to protect the child. Tex. Family Code 153.004.


If a possessory conservator’s periods of possession of and access to the children are to be supervised, a supervisor must be appointed. A supervisor can be a mutually trusted friend or family member and if funds are tight, this might be your only option. However, when you rely on an individual, you are relying on someone who is probably not trained in dealing with supervised possession issues (e.g. thwarting a kidnapping, recognizing the signs of abuse, etc.) and you subject yourself to their availability and continued willingness to act in this role.


If a supervisor must be appointed, it is best to appoint an agency or counseling center. Counties are authorized to establish visitation centers whose job it is to help people comply with visitation orders. Tex. Family Code 153.014.


The court takes false allegations of abuse very seriously. If the court finds that an allegation of abuse lacks any factual basis, it may impose a $500 fine on the person making the allegation. Tex. Family Code 153.013. Therefore, if your spouse has a history of family violence, you MUST report each incident of violence to the police by dialing 911.


If your spouse (or anyone else) prevents you from making a 911 call, that is a separate criminal offense on their part. Nonetheless, you must make a report to the police as soon as possible. The sooner you make the police report, the sooner the police can observe the people and places involved and make a credible third-party report, which you can use in court as evidence of the factual basis of an allegation of abuse.


If your spouse is an abuser, call the police—every time!

Conservatorship vs. Custody
In many states, the law focuses on “child custody.” Custody is a right. When you have custody of something, it is yours to use and care for as you see fit. By contrast, when you are the “conservator” of something, you have certain rights with respect to it, but you also have clear duties to conserve it, take care of it, and keep it safe. Wanting to make clear that the best interest of the children was always the standard against which all possession orders are judged, the Texas Legislature has adopted a system of “conservatorship” instead of “custody.”

Conservatorship Roles
There are two types of conservators under the Texas Family Code, managing conservator and possessory conservator.


A managing conservator is allowed to make decisions concerning the child’s upbringing, religious education, academic education, and health care. A possessory conservator is allowed to visit the child, but is not allowed to make many (if any) decisions.


When the parents of a child do not live together (such as is the case after divorce), the court must appoint at least one managing conservator. A managing conservator must be a parent, a competent adult, and authorized agency, or a licensed child-placing agency. Tex. Family Code 153.005. If both parents are unqualified to act in the best interest of the child, neither will be appointed managing conservator.

Once the court appoints a managing conservator, the court may appoint one or more possessory conservators. If a possessory conservator is appointed, the court must make or approve a specific schedule for when the possessory conservator will have possession of or access to a child. Tex. Family Code 153.006.


Unless there is a pattern of abuse, neglect, or endangerment of the children by one parent, usually both parents are appointed as Joint Managing Conservators (JMC). That means that both parents will participate in making decisions about the upbringing of their children. Tex. Family Code 153.131.


If the court finds that one of the parties having a right to possession of or access to the children poses a risk of not adhering to a court order, the court may require that party to post a bond or some security to guarantee compliance. Tex. Family Code 153.011.

Parenting Plan
Parents are encouraged to enter into written, agreed parenting plans rather than have one imposed by the court. A parenting plan spells out all the details of how the parents will share rights and duties in raising the children and when each parent will have possession of the children.

If the court finds that the agreed parenting plan is in the best interest of the children, the court will approve the plan and make it the order of the court. Otherwise, the court may ask the parents to submit a revised plan. If the parents fail to resubmit a parenting plan that the court finds is in the best interest of the children, the court may impose a plan. Tex. Family Code 153.007.


A plan that the parties create between themselves is more likely to be followed by the parties. When the parties to a dispute are able to work out a plan between them, the plan can take into consideration any special needs of the children or any particular work/school schedules of the parents.

The least expensive way to create such an agreement is to negotiate with each other, through attorneys if necessary. Where that fails to result in an agreement, the parties can try mediation. If mediation fails, the parties will have to present their ideas and evidence to the court and let the court decide.

If the court finds at the time of the hearing that the parties have a history of not being able to resolve issues between them, the court may order one or both of the parties to participate in counseling with a mental health professional. Tex. Family Code 153.010.


Usually, parents are able to work out an agreed parenting plan, but it often requires mediation to help focus everyone’s mind on the negotiation process for a day.


Rights and Duties of Parent Conservators
If both parents are appointed as conservators of the children, as is the usual case, the court must designate each parent’s rights and duties as being either (1) exercised by each parent independently; (2) by joint agreement between the parents; or (3) exclusively by only one of the parents. Tex. Family Code 153.071. If the court seeks to limit the rights and duties of one of the parent conservators, it must explain in writing why such a limitation is in the best interest of the children. Tex. Family Code 153.072.


Unless the court finds that doing so would not be in the best interest of the children, it is presumed, under the Texas Family Code, that both parents are to be appointed as Joint Managing Conservators (JMC). Tex. Family Code 153.131.

As discussed above, the notion of “conservatorship” dominates the philosophy of the Texas Family Code as it pertains to children. Conservatorship is not all about a parent’s rights but rather implies an important interplay between rights and duties.

As long as the court does not find that a parent’s rights and duties should be curtailed, parents have the following rights and duties:
  1. the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;
      
  2. the duty of care, control, protection, and reasonable discipline of the child;

  3. the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;

  4. the duty to manage the estate of the child and take actions on behalf of the child when required to do so by the government;

  5. the right to the services and earnings of the child;

  6. the right to consent to the child's marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;

  7. the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;

  8. the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;

  9. the right to inherit from and through the child; and

  10. the right to make decisions concerning the child's education.


 Tex. Family Code 151.001.


  
JMC Parenting Plan
If the parents agree to be joint managing conservators or if the court appoints them as such, the next step is for the parents to try to negotiate a parenting plan. The purpose of a parenting plan is to set out in writing the rules the parents will follow in sharing time with their children and in making decisions for the children’s health, education, and welfare.



If the parents cannot agree to a parenting plan, the court will impose one.



If the parents can agree to a parenting plan, the court must adopt the plan as long as it satisfies the following requirements: 
  1. Either designates which parent has the exclusive right to designate the primary residence of the children OR restricts the primary residence of the children to a specific geographic location. This geographic restriction is usually expressed as the children’s current county of residence and all adjoining counties; e.g. “Collin County, Texas, and counties contiguous thereto.”
  2. Specifies the rights and duties of each parent regarding the child's physical care, support, and education;
  3. Includes provisions to minimize disruption of the child's education, daily routine, and association with friends;
  4. Allocates between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent listed above;
  5. Is voluntarily and knowingly made by each parent and has not been repudiated by either parent at the time the order is rendered; and
  6. Is in the best interest of the child.
Tex. Family Code 153.133.

The parenting plan may, but does not have to, contain provisions for solving future disputes without first going to court. Such an alternative dispute resolution provision might say that the parents are to attempt mediation prior to bringing suit. Tex. Family Code 153.134.
  
The standard possession order (discussed below) and most alternatives negotiated between parents provide that the parents will have an equal or nearly equal amount of time with the children. However, this is not a requirement of joint managing conservatorship. Tex. Family Code 153.135.

Moreover, even if the parents are sharing equal or nearly equal rights, duties, and visitation times with each other, the court can still order one parent to pay child support to the other, depending on what the court finds as being in the best interest of the child. Tex. Family Code 153.138. Therefore, if a parent insists on a particular possession order, say week-on/week-off, in order to avoid the payment of child support, that gambit is not likely to work if one of the parents clearly needs financial assistance to meet the basic needs of the children.

A possession order, standard or otherwise, is not meant to curtail the freedom of parents who are able to work together amicably. Parents are permitted to exchange possession of and access to the children according to whatever schedule they can mutually agree to at any time. Tex. Family Code 153.311. When the parents cannot agree, then they must follow the rules set out in the possession order rendered by the court.

The Standard Possession Order – Policy and Application
The standard possession order (SP or SPO) was developed by the Texas Legislature as a guide to the courts in fashioning workable possession orders. Although parents and courts are not bound by the standard possession order, there is a presumption that the standard possession order provides a reasonable amount of time to each parent and is in the best interest of the children. Tex. Family Code 153.252. However, if the parents agree to an order that deviates from the standard possession order and the court finds that the agreement is in the best interest of the children, the court may approve such an order, but is not required to. Tex. Family Code 153.255.



Policy
According to the Texas Family Code, “it is the policy of this state to encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child.” Tex. Family Code 153.251(b). Toward this end, the Texas Family Code instructs us that “it is preferable for all children in a family to be together during periods of possession.” Tex. Family Code 153.251(c). That means that, all other things being equal, the law frowns upon split custody arrangements unless they are provably in the best interest of the children.



Application to Young Children
The standard possession order is designed to apply to children older than three years of age. Tex. Family Code 153.251(d). If one of the children in a divorce is younger than three years of age, the courts are instructed to render a possession order that is appropriate for their age and to also render another possession order to take effect once the child reaches the age of three. The Family Code presumes that this future or prospective possession order will be the standard possession order. Tex. Family Code 153.254.



Standard Possession Order Unworkable
The courts are not set on autopilot so that they must automatically approve the standard possession order. Sometimes a parent’s work schedule, class schedule, medical treatment schedule or schedule for possession of other children from other relationships makes the standard possession order either inappropriate or unworkable. Also, the standard possession order assumes that school age children are attending schools that follow the traditional 9-month on/3 months off school calendar. Most schools in Texas still follow a 9-3 calendar, but increasingly schools are experimenting with year-round calendars or other alternative schedules.



In those cases, where the parents have not been able to agree to a different order, the court may make an order that deviates from the standard possession order. In these cases, the courts are encouraged to follow the standard possession order as best as they can, given the circumstances of the parents and the needs of the children. Tex. Family Code 153.253.

Parents are free to negotiate and agree to alternatives to the standard possession order and the court may approve the order if the court finds that the order is in the best interest of the children. Tex. Family Code 153.255.

As a practical matter, for the court to find that an agreed alternative is in the best interest of the children, all that is usually required is for one of the parents to testify before the court that the order being presented to the court is in the best interest of the children. This is usually done by an exchange of questions and answers between one of the attorneys and one of the parents similar to this:
Attorney: “Have you and your spouse reached an agreement for possession of and access to the children?”



Client: “Yes.”

Attorney: “Is that agreement in the best interest of your children?”

Client: “Yes.”
  
And that is all the explanation that is usually needed when the parents have agreed between themselves to an order other than the standard possession order.

However, if the court is asked to impose an order because the parties cannot agree and the court deviates from the standard possession order, the parents have a right to request that the court explain in writing why the court made the decision it reached. Tex. Family Code 153.258.

The Standard Possession Order
The standard possession order (SP or SPO) is divided into two sets of rules. The first set of rules applies to parents who live within 100 miles of each other while the second set applies to parents to live more than 100 miles apart.



Parents Who Live 100 Miles Apart or Less

Throughout the Year


The possessory conservator has the right to possession of the children from 6 p.m. on Friday until 6 p.m. on Sunday on the first, third, and fifth weekends of each month. If there is a school holiday on Friday before or the Monday after one of those weekends, then the period of possession begins at 6 p.m. on Thursday (for a Friday holiday) and ends at 6 p.m. on Monday (for a Monday holiday). Tex. Family Code 153.312, 153.315.


  
During the Regular School Term
The possessory conservator also has the right of possession of the children from 6 p.m. until 8 p.m. on Thursday evenings. The children spend every other Spring Break with the possessory conservator. Tex. Family Code 153.312.



Summer Vacation
The possessory conservator has the right of possession of the children for 30 consecutive days during the summer, except that the other parent, with proper advance notice, may reserve one weekend during this time for possession of the children. The 30 days do not have to be exercised consecutively, but each period of possession must be at least 7 days long. Tex. Family Code 153.312.



Parents Who Live More Than 100 Miles Apart

Weekends
The possessory conservator can choose to have the children either the first, third, and fifth weekend as described above or he or she can elect to have the children any one weekend a month, as long as he or she gives the other parent at least 14 day’s notice. The possessory conservator needs to choose one scheme or the other and notify the other parent within 90 days of moving more than 100 miles away. Tex. Family Code 153.313.



Spring Break
The possessory conservator has the right to possession of the children during all spring break vacations. Tex. Family Code 153.313.



Summer Vacation
The possessory conservator has the right of possession of the children for 42 consecutive days during the summer, except that the other parent, with proper advance notice, may reserve one or two weekends during this time for possession of the children. The 42 days of possession do not have to be exercised at one time, but each period of summer possession must be at least 7 days long. Tex. Family Code 153.313.



Holidays
Possession rights for the following holidays are not affected by how far apart the parents live from each other. The holiday rules supersede any conflicts with regular Thursday night or weekend possession rights. (NOTE: If you are negotiating and writing your own possession order, no matter what your religious preferences are, use the names of the holiday periods that the school uses. If the school has a Christmas break and you don’t observe Christmas, call it Christmas in your possession order so that it is easy for the court to see how the order coalesces with the school calendar.)



Christmas Holiday
In odd numbered years, the possessory conservator has the right to possession of the children at 6 p.m. on the day that school lets out for Christmas through noon on December 28. The other parent has the right to possession of the children from noon on December 28 until when school resumes after Christmas. In even numbered years, this arrangement is reversed. (NOTE: When negotiating a possession schedule for families that observe Christmas, leave near each other, and can work amicably together, consider splitting the Christmas holiday on Christmas day. That way the children get to see each family—perhaps even extended family—on Christmas day.)



Thanksgiving Holiday
In odd numbered years, the possessory conservator has the right to possession of the children from 6 p.m. when school lets out for Thanksgiving until 6 p.m. the Sunday following Thanksgiving. In even numbered years, this arrangement is reversed.



Child’s Birthday
The parent who is not otherwise entitled to possession of a child on the child’s birthday has the right to possession of the child from 6 p.m. until 8 p.m. on the child’s birthday.



Mother’s Day/Father’s Day
The mother has the right to possession of the children on Mother’s Day weekend from 6 p.m. on Friday until 8 p.m. on Sunday. The father has the right to possession of the children on Father’s Day weekend from 6 p.m. on Friday until 8 p.m. on Sunday. This supersedes any regularly scheduled weekend possession.



Make-up Time Following Military Deployment
Within 90 days of returning from a military deployment, the parent who was deployed can petition the Court for additional days of possession if the parent was deployed to a place or a type of duty that made possession of the children unreasonable. The make-up time does not have to be consecutive and it does not have to be day-for-day. In other words, if the parent was deployed for 2 years, the court does not have to award the returning parent 2 years of makeup time.



Standard Possession Order – Time Spent with Each Parent
On average, under the standard possession order, children will spend about 215 days per year with the managing conservator, 93 days with the possessory conservator, and will split 57 days between each of them. This is an average. In even years the possessory conservator will spend 103 days with the children but only 82 days in odd years due to alternating Spring Break, Thanksgiving, and Christmas holidays.





However, if the possessory conservator elects an extended schedule, the possessory conservator will have the children an average 113 days, the managing conservator will have the children an average of 195 days, with 57 days split between them.


Other Possession Schedules
Parents can agree to any possession schedule that works for them and which is also in the best interest of their children. With two working parents, as is almost always the case after divorce even if it wasn’t before, the standard possession schedule can be difficult for the managing conservator. Where the parents live in the same school district, it is easy for them to try alternative schedules such as alternating weeks between them.


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