Mothers in Texas, especially SAHMs may worry that they might lose custody of their children during a divorce because they stayed at home with their children instead of pursuing work outside the home. The short answer is no, a stay-at-home mom will not lose custody of her children simply because she did not work outside the home. This blog will address concerns moms might have regarding conservatorship and provide additional tips on how stay-at-home moms can navigate issues surrounding custody during their divorce.
What is Custody?
Many people use the term custody, but the actual legal term for custody is conservatorship in Texas. Conservatorship defines a parent’s relationship to their child and assigns parents certain rights and duties. Under Texas law, there are three types of conservators: Joint Managing Conservator, Sole Managing Conservator, or Possessory Conservator. More often than not, parents will be appointed Joint Managing Conservators. This blog will focus specifically on the rights that come up as issues most often, especially for stay-at-home moms. If you want to learn more about conservatorship in general, you can read more about conservatorship here.
Conservatorship Rights
Primary Residence
If parents are appointed Joint Managing Conservators, stay-at-home moms should try to get the right to designate the primary residence of their child. The right to designate the primary residence of a child means that the stay-at-home mom will get to decide where the child resides most of the time. The parent who designates the primary residence typically is the parent who will receive child support because the other parent generally has what is called a Standard Possession Order, better known as an SPO. It is common for stay-at-home moms to be given the right to designate the primary residence of their child because they have oftentimes been the primary care giver of the children.
The parent who has the right to designate the primary residence usually has to designate that primary residence within what is called a geographic restriction. A geographic restriction means that the parent must choose a home for the child within a certain area. Oftentimes, the geographic restriction is the county where the divorce is taking place or the county where the divorce is taking place plus counties that touch the county. However, parties can agree to other geographic restrictions. A common alternative parents choose is the school district where the children are currently zoned to during the divorce. In other cases, parties agree to having the geographic restriction be something broader, such as “Texas” or “the United States”. Stay-at-home moms should advocate for the geographic restriction that would be in the best interest of their children.
Texas courts will order a geographic restriction if the parties cannot come to an agreement. Texas law views it to be in the children’s best interest to have an ongoing relationship with both parents. For this reason, courts will order parties to have a geographic restriction unless the parents come to an agreement otherwise so that the parents live close enough to each other to facilitate an ongoing relationship with the child. It is important for stay-at-home moms to remember that it is in the best interest of children to have an ongoing relationship with their other parent which is easier to facilitate when the parties live close to one another.
Invasive Medical, Dental, and Surgical Treatment
Parents have the right to consent to medical, dental, and surgical treatment in emergency situations. Absent an emergency, a parent must be apportioned the right to consent to medical, dental, and surgical treatment involving invasive procedures. This right is apportioned to either one parent exclusively or to both parents jointly by agreement. Tie breaker language normally accompanies this right if the right is subject to agreement. If the parents cannot come to an agreement, typically the child’s physician will decide the course of action in regard to the child’s medical, dental, and surgical treatment involving invasive procedures.
Like the other conservatorship rights outlined here, being a stay-at-home mom does not control whether or not a parent will be awarded the right to consent to medical, dental, and surgical treatment involve invasive procedures. Courts generally want parents to co-parent well and make important decisions regarding their children together. In cases where the parents cannot successfully co-parent in a healthy way, courts will look at which parent has historically been involved in making the medical, dental, and, if applicable, surgical treatment decisions for the child. In general, the parent who takes the child to the doctor and dentist, knows the medication the child takes, and has greater insight into the child’s medical history overall is more likely to be awarded this right. Since stay-at-home moms normally take on the role of managing the children’s medical, dental, and surgical treatment, we oftentimes see stay-at-home moms continuing to be involved with making these decisions in regards to their child during and following a divorce. If you feel that this right might be an issue in your case, it is recommended to make sure you attend your child’s appointments and stay engaged during any medical or dental care they receive.
Psychiatric and Psychological Treatment
Parties oftentimes also place a lot of importance on the right to consent to psychiatric and psychological treatment. This right includes the ability to consent to your child attending therapy or taking medication for mental health purposes. Similar to the right to make medical and dental decisions, courts prefer parents to make decisions about the child’s psychiatric and psychological treatment together. Courts will likely make the right to consent to psychiatrist and psychological treatment joint and use tie-breaker language unless there are facts present that would make the court believe that a joint right would not be in the best interest of the child. The tie-breaker language means that the child’s primary care physician would make the decision regarding the child’s psychiatric and psychological treatment if the parents cannot come to an agreement.
Parents can take steps to put themselves in a good position to request the court grant them this right. For example, parents can attend their child’s psychiatric and psychological appointments if the child is already receiving such care even if that means just sitting in the waiting room. A parent’s presence at the appointments show that they are involved in their children’s treatment, a fact looked on favorably by courts. Similarly to medical decision-making rights, stay-at-home moms oftentimes get the right, either exclusively or jointly with the other parent, to make psychiatric and psychological treatment decisions for their children during and following a divorce if they have previously been involved with making these decisions when necessary.
Educational Decisions
Another important right to keep in mind is the right to make decisions concerning the child’s education. Educational decisions include the decision whether to enroll the child is advanced placement courses or whether to hold the child back a year in school if they are struggling to keep up academically. Courts generally prefer to also make this right a joint right subject to tie breaker language. Oftentimes the school counselor acts as the person designated to make the final decision on educational topics if the parents cannot come to an agreement.
A parent, including stay at home moms, who want to be apportioned this right should make sure they stay involved with the child’s school. For example, the parent should attend the child’s parent teacher conferences, stay engaged with correspondence from their child’s teacher, and help make decisions regarding their children’s education prior to coming to court. It does not look good for a parent in court when the parent does not know the name of the child’s teacher or what grade the child is currently in. Staying engaged in the child’s education will help if a fight over conservatorship occurs. Stay-at-home moms generally get to make educational decisions for their children during and following a divorce because they are typically the parent who have been making these decisions prior to filing any divorce suit.
Overall, mothers do not need to worry that their role as a stay-at-home mom will result in them losing conservatorship of their children because they did not work outside the home during their marriage. Decisions regarding how to apportion conservatorship rights between parents oftentimes comes down to which parent is actively involved in the child’s life regardless of whether or not that person worked outside the home. If you have concerns about your conservatorship rights in relation to your children, we recommend reaching out to a trusted attorney who can guide you on making sure you and your children are protected.