When a parent does not have primary custody of their child, it does not mean they are without rights. Every parent in Texas has rights, regardless of how much time they have with their children and whether the children live with them. The custodial parent must respect these rights under the possibility of penalty from the court. Here is an explanation of the rights that Texas non-custodial parents have.
Rights of Texas Non-Custodial Parents
1. The Non-Custodial 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.
2. 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.
3. Visitation Rights for the Non-Custodial Parent
Texas Law has a presumption that allows the noncustodial parent to spend a fair amount of time with their children and protects non-custodial visitation rights.
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.
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
Possessory Conservator
In Texas, the non-custodial parent is referred to legally as the “possessory conservator.” Any parent can be the possessory conservator, depending on the realities of their relationship with the child. In only about 10 percent of cases in Texas, the mother is the possessory conservator, or non-custodial parent. Texas custody cases begin with the presumption of joint conservatorship, but the parents could always agree on a different arrangement, or a court could order it.
The parent with primary custody is referred to as the “managing conservator.” They are the one who will be with the child the bulk of the time, and they will make major decisions concerning the child’s health and welfare.
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
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 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.
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.
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. When a parent does not have primary custody of their child, it does not mean they are without rights. Every parent in Texas has rights, regardless of how much time they have with their children and whether the children live with them or not.