Custody and Visitation Introduction

Why Two Parents Matter

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If everything is working okay between me and the other parent, why get an order for parenting time? A court order may be called a Decree of Divorce, a Paternity Decree, or an Order In Suit Affecting the Parent-Child Relationship. Regardless of its name, the order will always identify the known parents, the child, and the rights and responsibilities of each parent.

After a break up, many parents think they will be able to work it out and do not need the protection that a court order offers. This may work for a while and parents are encouraged to cooperate and be flexible, whether they have a court order or not. Problems often arise if one parent begins dating, or if one parent wants to move away and take the child.

Establishing a court order when you are working together well means that you are more likely to reach an agreement that is focused on your child’s best interests. The court order helps prevent future disagreements. If major conflicts arise, you will have an order in place that you both agreed to when things were more positive.

A court order is the minimum expected of both parents. Parents who were never married and have no court orders have no assurance that a parent will return a child or that child support will be paid. Having a court order keeps both parents on track—you know who will pay child and medical support and when the child will spend time with both parents.

Conservatorship (Custody)

Texas law presumes that both parents should be joint managing conservators. When considering restrictions on rights and possession, the judge can consider a history of domestic violence, and the amount of time the parent has spent with the child. In most cases, one adult is appointed the “primary managing conservator” or custodial parent. This person has primary custody of the child and determines where the child will live. This parent also receives child support. The other parent is the noncustodial parent. Every noncustodial parent has very specific rights to spend time with the child written out in the court order. Texas law calls this parenting time possession rights that are presumed to be in the best interest of the child. The judge can change these possession rights if that is best for the child.

How do I know if I am a joint managing conservator, sole managing conservator, or possessory conservator?

Check the first few pages of your court order. If you need a copy of your court order, contact the district clerk’s office in the county where you went to court and provide your cause number, your name and the other person’s name, and/or your Social Security number. Ask about the cost for a certified copy signed by the judge. A certified copy has the official stamp and judge’s signature on it.

If you have questions after reading your court order, call the Access and Visitation hotline at 1 (866) 292-4636 to talk to an attorney about parenting time (visitation), custody, paternity establishment, and the child support process. The hotline is open Monday -Friday from 1 to 7 p.m. Hotline calls are answered in English and Spanish. You can read your order to the attorney and ask questions.

Court Orders

Conservatorship, possession, and access orders are commonly known as custody and visitation or custody and parenting time orders. The orders define each parent’s rights and responsibilities. Under Texas law, there is a presumption that one or both parents should be managing conservators of a child, unless it would not be in the child’s best interest and would hurt the child’s physical health or emotional wellbeing. There are exceptions. Reasons to limit parenting time might be that one or both parents has:

  • A history of neglecting the child
  • Abused the child
  • Committed domestic violence against the other parent

There are different kinds of conservators. There is a “managing conservator” and a “possessory conservator.” Texas law presumes both parents will make day-to-day decisions about their children (joint managing conservators).

Custodial parents:

  • Share the decision making (joint managing conservator); or be solely responsible for making the day-to-day decisions about the child (sole managing conservator);
  • Receive child support (obligee);
  • May determine child’s residence.

The alternative is where one parent makes most of the decisions (sole managing conservator). After at least one managing conservator is appointed, a court may also appoint one or more possessory conservators.

Noncustodial parents:

  • Usually share the decision making (joint managing conservator);
  • Receive possession of the child (parenting time)
  • Pay child support (obligor).

Rights and Responsibilities

Judges like parents who can work together as responsible adults to help their child succeed. Most divorced or never-married parents recognize the importance of maintaining practical relationships for the good of their children. They don’t want their children to suffer because mom and dad can’t set aside their differences and get along.

Children benefit when their parents support each other’s decisions and give their children clear guidelines and expectations. Working for your child’s success requires the parents to set aside their personal feelings. When parents cannot agree on an appropriate division of rights and responsibilities, the court will define the rights and responsibilities it believes is best for the child. This is called the “child’s best interest” and it is what the judge must consider for parenting, child support, and medical support. In some high-conflict cases, the judge may appoint a guardian ad litem or attorney ad litem to investigate the situation and give a report to the court. The ad litem is a mental health professional or an attorney with mental health training who looks at the whole family before making a recommendation to the court. This can be expensive. The court, not you, the parents, makes decisions that affect your family. In many cases, neither parent will be happy with a decision that the court is forced to make because the parents cannot reach an agreement. The court is guided by the Texas Family Code, which sets out “standard” rights and responsibilities of each parent. Depending on the facts and evidence of each case, the “standard” rights and responsibilities can be altered by the judge.

The difference between Conservators and Guardians

A person having possession rights to a child is a “conservator” under Texas law. This is similar to, but different than, a “guardian.” Generally, a “guardian” is appointed by a Texas Probate Court to protect a child’s money or property.
Joint Managing Conservatorship is presumed. Compare your order and note any differences.