When a divorcing couple has children, child custody is often a difficult issue. Decisions must be made about where the kids will live and go to school, how much time each parent will have with the children and how the kids' major life decisions will be made.
Ideally, child custody matters can be negotiated by the parties outside the courtroom with each ably represented by an experienced family law attorney. Alternate dispute resolution methods like collaborative law or mediation may be helpful to this end. When a marital termination agreement that determines child custody and other important matters is negotiated outside the courtroom, normally a judge still needs to approve the agreement. But if child custody issues can be settled privately between the spouses, even if they are not entirely happy with the result, the uncertainty of what the judge might have done is eliminated.
However, not all couples can agree on child custody issues. In a high conflict divorce, the matter may end up in court for the judge to determine what is in the best interest of the children. Texas law guides the judge in his or her decisions affecting the kids.
Texas law calls child custody "conservatorship" and provides for two kinds:
- Joint managing conservatorship: parenting roles are shared
- Sole managing conservatorship: one parent has "exclusive rights" to make the most important decisions concerning the child like determining the child's residence, consenting to medically "invasive procedures" or mental health treatment, and making educational and legal decisions
The court may appoint the parents JMCs only if "in the best interest of the child." While Texas law says that the court may look at any relevant factor to determine the child's best interest, it must consider:
- The child's needs and development
- The ability of the parents to work together and prioritize the child
- The ability of each parent to support the child in a "positive relationship" with the other parent
- The degree to which each has been an active parent
- Geographical proximity of the parental homes
- If the child is at least 12, the child's preference of which parent should decide where the child lives
If the court decides the best interest of the child is met by JMC, the court order must, among other things, designate which parent has the right to determine the child's primary residence. The order also will divide the other rights and duties of parenthood, or grant any of them jointly or exclusively.
This has been only a broad, introductory look at Texas child custody law. If you face child custody issues in your divorce, talk to an experienced divorce attorney to understand your options fully.