In divorce cases, parents (or a judge) must figure out the relationship between the divorcing parents and how their children will be raised. One common option is joint custody, where the parents share equally in the responsibilities. Joint custody – called joint managing conservatorship in Texas – is the preferred option, although it is not always possible. Below we list some important considerations related to joint custody.
The Forms of Joint Custody in Texas
In Texas, joint custody does not mean what it does in other states. There are two different custody categories:
- Conservatorship – this is what would be considered legal custody, meaning the right to make important decisions pertaining to the children. While the legal term for a shared right to make decisions is called a joint managing conservatorship, in this article, we will refer to it as joint custody.
- Possession/Access – this is considered physical custody, where the parents agree (or the court decides) which home will be the child or children’s primary residence, which parent has visitation rights, and the visitation schedule.
Decisions Impacted by Joint Custody
With joint custody, each parent will have a say in the major decisions impacting a child or children. These decisions include:
- Health care
- Psychiatric decisions
- Religious upbringing
Parental Rights Under a Custody Arrangement
With joint custody, each parent has the following rights:
- To discuss issues with any of a child’s medical providers
- To give consent to medical courses of treatment
- To obtain information about education or health care treatment
- To have access to a child’s education records
- To have their opinion considered in decisions about sports and extracurricular activities
A Parenting Plan Can Help Joint Custody Work
Joint custody is usually the presumption in Texas. Judges tend to believe children are better off with both parents equally participating in key decisions because they benefit from both parents’ experience and involvement in their lives. Without any other factors being present, a judge would likely order joint custody.
Even if they have joint custody, the law does not assume parents will work together seamlessly without any further guidance. Texas law provides for a parenting plan to detail the relationship between the two parents and specify how the joint custody arrangement will work. This is the same thing as a custody agreement.
A parenting plan is something that can help each parent protect themselves and their interests in raising their child or children. Parents should carefully consider the terms when negotiating such a plan because they will be bound by it in the future. A court would only order a modification if a parent can prove circumstances have changed since the time the plan was established. Parents will benefit from the help of an experienced family law attorney when negotiating a parenting plan.
What Happens When Joint Custody Is Not Possible
In some cases, parents are not able to agree on certain parenting decisions. In those cases, they may file a motion in court, and a judge would determine parental rights. If in the future after a parenting plan is adopted, the parents simply cannot work together or agree at all, they may file for a modification. A judge may award primary or sole legal custody to one parent, or decide that a third party will make key decisions for the children.
With joint custody, parents will need to work together for the good of their children. Regardless of how or why a marriage ended, ex-spouses need to put their differences aside in order to co-parent. This requires communication and flexibility on the part of both parents. The benefit is that co-parenting will have a positive impact on their children’s lives.
Courts May Award Sole Custody Under Some Circumstances
There are limited circumstances in which a Texas court may decide that one parent should have sole custody. For example, if one parent has a track record of abuse towards the other parent, it is not a good idea for them to work together, nor would it be in the best interests of the children. In that case, one parent could get sole custody of the children. The two parents could also agree to sole custody as part of a divorce settlement; however, assuming both parents are involved in their children’s lives, they would still usually maintain the ability to participate in decisions related to their children’s care.
With joint custody, one parent cannot make a unilateral decision without consulting the other parent. If they do, they may be in violation of a court order and subject to a finding of contempt of court.
Joint Custody Is Best if Possible
Parents should strongly consider joint custody – or a joint managing conservatorship – if they each have a history of involvement in their children’s lives and they believe they can work together. However, even if the parents do not have the best history together, a court will not shut one parent out just because of that. Instead, a judge may impose tight rules for how the parents will work together and interact, including the use of court-ordered co-parenting software that documents their interactions. Each custody matter is decided on a case-by-case basis. Nonetheless, some family situations may not benefit from the parents trying to work together.
Joint custody does not automatically guarantee a 50/50 split in possession – or time spent with the children. Even if the parents have negotiated joint custody for the decision-making process, they still need to agree separately about the amount of possession and access to the children. One parent could still be awarded or receive primary physical custody even when the two share decision-making powers. The other parent would have their own scheduled visitation time with the children. The main determinant of a visitation schedule is what is in the best interests of the children. Even though one home may be the primary residence for the children, parents can still split custody time as they see fit.
To schedule a consultation, contact us today. Our Brazoria County, Texas family law attorneys are ready to help.