When referring to divorced families, people often ask “Who has custody of the kids?” To a non-lawyer, this term has well-known connotations; it refers to the parent the kids live with, the parent who spends the most time with the kids, and who makes most of the important decisions affecting their lives.
However, nowhere in the family law statutes in Texas will you find the term “custody”. Instead, when a divorce is finalized, a judge will designate the parents as either Joint Managing Conservators, which is the presumed designation and what occurs the vast majority of times, or one parent as Managing Conservator and the other parent as sole Possessory Conservator.
Don’t get hung up on these labels though, as they are primarily just that, labels, just like “Dad” or “Mom” is a label. “Dad’ or “Mom” doesn’t tell you anything about what kind of parent they actually are, or how involved they are in their child’s life.
The same is true with the label of “conservator”. What’s really important are the rights and duties given to each parent, as well as the type of parenting time assigned to each. For example, usually the court will award one parent with the right to establish the child’s domicile or primary residence. This is the parent who law persons normally consider as having .
There are other rights that are awarded to each parent that are also important. While both parents will have the right to consent to emergency medical treatment or for routine medical treatment during their parenting time, the right to consent to elective surgical treatment or to psychiatric treatment and counseling is one of those rights that may be important to fight for.
It’s important to know what rights the judge has the power to award and to discuss these rights and powers with a child custody attorney. For example, if one parent is a doctor and the other is a lawyer, the court may want to award the medical decision making to the doctor parent and the legal decision making to the lawyer parent.
Child Visitation Rights in Texas
Family life after divorce can take on many different forms. In some cases, parents can remain friends, or at least put aside their differences and truly co-parent their child. In other situations, you’ll see parents who are the opposite, unfriendly to each other, unable to spend time together, and perhaps even hostile. As a result, parenting time can vary, depending on the facts of each case, how the parents interact with one another, the ages of the children, and their needs.
Parents who are cordial with each other can, and often do, define their own visitation schedules. In other cases, the courts may impose a that defines the schedule. When you read the family code subchapter on conservatorship, possession, and access to the kids, it may sound quite rigid but it has to be that way for parents who have trouble being civil with each other. It’s also intended to provide continuity and routine in the children’s lives, which are important components to stable family life.
In almost all possession orders, there is a preamble that states “at all times mutually agreeable, and failing mutual agreement, parent A…” has the following parenting time. Then there are specified days and times that such parenting time begins and ends. The reason for this is so that in the event communication between the parents breaks down, both parents have enforceable rights that are well defined as to when the parenting time begins and ends. It also allows for planning months down the line.
For parents who live in the same city or area, defined as 100 miles or less apart, there are specific rules in the Texas Family Law Code that relate to visitation. Below is an outline of some of the more important rules affecting the parent defined as having possessory conservator rights, sometimes referred to as the non–custodial parent.
Visitation During the School Year
During the regular course of the year when the kids are in school, the conservator who has visitation has access on weekends on the first, third, and fifth Friday of every month, either beginning at the time school recesses or 6:00 pm and ending at 6:00 pm on Sunday, or on Monday when school resumes. In addition to that, during the school year, on Thursdays of each week beginning at either when school recesses or 6 pm and ending at 8 pm that day or when school resumes on Friday.
Spring break is shared between parents with the conservator alternating years beginning at 6 pm the day the kids are dismissed from school for vacation and ending at 6 pm the day before they go back to school.
Summer Vacation and Exception for Father’s Day
Since the rules contained within standard possession orders in Texas are very detailed, you may want to consult with your child custody attorney to make sure you understand what you have to do during summer vacation. The family code encourages parents to manage the lives of their children and when it comes to summer vacation, upfront planning is key.
The parent that had alternating weekends throughout the school year still continues those weekends but is also provided an additional 30 days that that parent may designate before the summer begins. The “custodial” parent has the right to elect two weekends during the other parent’s time period for their own, in essence setting up a veto of the other parent’s parenting time.
The distance between parents makes a difference. For those who live 100 miles or less apart, the conservator who has had alternating weekends throughout the year is given 30 days with the kids in summer and 42 days if parents live more than 100 miles apart.
The family code also carves out exceptions for Father’s Day and Mother’s Day, giving those weekends to the respective parent, regardless of whose weekend it would normally be. In other words, another veto over the standard parenting time scheme.
Family Holidays and Birthdays During the Year
However, the distance between parents who are divorced doesn’t affect visitation when it comes to holidays, except Spring Break. When the parents live within 100 miles of one another, Spring Break is alternated between them. However, if the parents live more than 100 miles apart, the non-custodial parent gets every spring break.
Thanksgiving and Christmas break is divided equally, regardless of the distance between parents. In one year, parent A would get all of the Thanksgiving holiday and the second part of the Christmas break, beginning on December 28 at noon. The other parent would have the front portion of the winter break that year. This scheme would be reversed the next year, and then continue alternating thereafter.
Additionally, the parent who is not scheduled to have possession of their child on their birthday has the right to do so on that special day, picking the child up no earlier than 6 pm and returning to your former spouse no later than 8 pm.
In the end, visitation rights defined in the family law statutes of Texas are very similar to the schedules divorced parents come up with themselves. If you have questions regarding your rights as a parent, you should consult with a family law attorney.