Even if a parent does not have legal or physical custody of their children, they still play an important role in their lives. Children benefit from the experience and guidance of having both of their parents involved in their lives. Further, the court order that determines custody gives parents legal rights, no matter what their status is. These rights are taken seriously by the court because they are in the best interest of the children.
The Different Custodial Arrangements in Texas
There are two ways that custody of children can be joint following a divorce. When parents are not raising children together, they would need to share in the following in some manner:
- The right to make important decisions concerning the child’s health and welfare (In Texas, the legal term for this is a managing conservatorship)
- The right to have physical possession of the children
There is a legal presumption in Texas that the two parents will have joint custody when it comes to making decisions for the children. A child custody case will start from the presumption that the parents will share in decision-making unless one party overcomes that presumption. In general, it is better that the two parents work together to make decisions for the children. In the ideal situation, the children would benefit from the input and participation of both parents.
The court may consider some of the following factors in deciding to award sole custody to one parent in the area of decision-making:
- The history of the parent’s relationship with a child
- Any abuse or mistreatment in the relationship that would keep the parents from working together
- One parent’s history of substance abuse
- A parent’s criminal record
- The root cause of extreme tension between the parents
The Noncustodial Parent’s Rights with Regard to the Child’s Welfare
If one parent is awarded legal custody, the other parent still has their rights with regard to the children. Specifically, the parent who makes decisions has a legal obligation to keep the noncustodial parent informed of the health, education, and welfare of the child. In addition, the custodial parent must confer with the noncustodial parent in making decisions to the fullest extent practicable.
The noncustodial parent should have access to information about the child. They have the right to see medical records and to speak with the children’s doctors and providers. They are also allowed to participate in meetings concerning the child and to speak with teachers and educators. The parent with legal custody of the children does not have the right to keep the other parent out of the loop or from learning information pertaining to the child.
There is no presumption that one parent should have custody of the child. It is incorrect to say that the mother is presumed to have legal custody. The decision of whether to award one parent legal custody, and which parent receives it, is determined in the best interest of the children. Unless one parent can show otherwise, each party will have legal custody and share it.
The Noncustodial Parent’s Right of Access to the Child
With regard to physical access and where the children reside, the legal presumption in Texas is that the child has a primary residence, with the other parent having visitation rights. By definition, one parent would spend more time with the children than the other. However, a parent can overcome that presumption by showing that joint physical custody is in the best interest of the children.
The parent who does not have physical custody of the children has their own set of rights. Specifically, the parent has the right to have access to and spend time with their children according to the schedule laid out in the parenting plan.
Visitation Rights for the Non-Custodial Parent
Texas has a presumption that allows the noncustodial parent to spend a fair amount of time with their children. The default visitation schedule in Texas is as follows:
- The noncustodial parent can spend the first, third, and fifth weekends of each month with the child or children
- The children are to be with the noncustodial parent on Thursday night
- Holidays will alternate between the two parents
- The noncustodial parent can spend an extended period of time with the children during summer vacation (usually at least 30 days)
The visitation schedule may change if the parents live more than 100 miles apart. In that case, it is not in the children’s best interest to move them back and forth between the parents’ homes more often, considering the travel time. The noncustodial parent will still be able to spend extended periods of time with their children, albeit on a different schedule.
Non-custodial Parental Rights Must Still Be Respected
Even if a parent does not have legal custody, they still have their parental rights. Noncustodial parents have a variety of legal rights in Texas that must be honored and respected. Just because one parent has sole custody, either in terms of decision-making or physical possession, it does not mean that they do not have to respect the other parent’s rights.
If one parent violates the law or the custody agreement, they may be punished, possibly even through contempt of court. If that parent has a history of routinely disregarding non-custodial parental rights, it may even be grounds for the court to modify the custody agreement to either change custody or take it away from one parent completely.
You Should Take Action if Your Parental Rights Were Violated
If your rights have been violated, you should consult with an experienced family law attorney to determine your next steps. In most cases, you should speak with the other parent to work out a satisfactory resolution before you take the matter to court. For example, if the other parent did not allow you visitation as scheduled, you should arrange for makeup time with the children. In the meantime, you should continue to document any violations of your rights as the noncustodial parent in case you need to go to court. If the other parent continues to violate the parenting plan, you may then have no other choice but to file for contempt of court or for a modification of the child custody order.
Custodial Rights Are Not Connected with Child Support
As the noncustodial parent, you would have a legal obligation to pay child support to the parent with primary physical custody. The parent who spends less time with the children must pay the other monthly. In Texas, there is a set formula for determining child support that applies unless you can overcome the presumption. However, if your rights as the noncustodial parent have been violated, it would have no bearing on your obligation to pay child support and the amount of it. The obligation to pay child support is completely independent of your visitation and possession rights as the noncustodial parent.
Your Parental Rights Are Described in the Parenting Plan
In Texas, legal custody is often determined by a parenting plan. In many cases, the two parents would agree at the time of the divorce on how to share both responsibility and time with the children. Although the court would review the parenting plan, judges usually defer to what the parents agree upon. If the two parties cannot come to an agreement, the court would need to decide the terms of a parenting plan after a contested hearing. In most cases, parents are eventually able to agree, whether it is through the help of their attorneys or a trained mediator.
Even when you have rights as a noncustodial parent, they are similarly not set in stone. There may be situations in which the court orders a change. In some cases, a court may take away your access to the children when it believes that visitation is not in the best interest of the children. Although a court does not take this decision lightly, it may do this when the judge believes there is a physical danger to the children. The custodial parent may also initiate a modification hearing that could potentially cut back on your access to the children based on changed circumstances.
You must consider the realities of child custody before you agree to the terms of your divorce. Once you have signed a divorce agreement, it can be difficult to modify. You would need to show that there was a significant change in circumstances that would merit such an alteration. This is not to say that it is impossible to obtain a custody modification, but you should not rely on it changing the parenting plan in the future.
Contact a Texas Family Law Attorney Today
You should always consult with an experienced family law attorney when you are in the divorce process, when determining custody, and when there are legal issues that arise after the divorce.
The attorneys at Terry & Roberts can work with you on custody matters, both during and after a divorce. You can contact us today to discuss your particular child custody issue and get the advice of an experienced child custody lawyer.