Joint custody is one of the most common requests made of family law attorneys. Clients almost always want as much time with their kids as possible, which means dividing their children’s time between them. To parents, joint custody means many different things, but often involves children living with both of their parents in equal amounts; however, in Texas, this process can be complicated.
Texas family law uses the word “conservatorship” rather than “custody,” and it encompasses more than just the living arrangement. A conservatorship means a parent lives with the child and makes crucial decisions on behalf of his or her child. These decisions could include things like religious training, medical care, and education.
There are also two types of conservatorship in Texas: joint managing conservatorship and sole managing conservatorship. Sole managing conservatorship is usually reserved for circumstances in which the other parent might pose a danger to his or her children. For example, a parent with a history of violent criminal behavior, family violence, or substance abuse may not be awarded joint managing conservatorship; instead, the other parent could be granted sole managing conservatorship, and the other parent might receive only some visitation rights instead.
The Texas Family Code, to which all Texas judges are bound, also contains a detailed possession calendar called the Standard Possession Order (SPO). The SPO gives the non-primary parent about 42% possession time of the kids. Additionally, the expanded version of this schedule provides the non-primary parent with extra time, around 48%. Unless there are incredibly odd circumstances, most judges will order the SPO, or the expanded version at the non-primary parent’s election, for the non-primary parent.
Likewise, if parents can informally agree to equal possession of their kids and have an agreement drafted into their final divorce decree, judges may refuse to sign the order because it deviates from the Texas Family Code.
However, the Texas Supreme Court has ruled that trial judges may not set aside parenting plan agreements made by parents during mediation, a type of alternative dispute resolution. By mediating a divorce, parents are presumed to be acting in their children’s best interests and are in a better position to know what their kids need. Thus, if parents agree to a 50/50 possession schedule and put their plan into a Mediated Settlement Agreement during mediation, a judge should not be able to overturn that agreement.
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