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Originally Posted On: https://sbrownlawyer.com/2020/09/10/types-of-custody-arrangements-for-divorcing-couples/
GETTING A DIVORCE WHEN CHILDREN ARE INVOLVED CAN BE COMPLICATED. THE TYPES OF CUSTODY ARRANGEMENTS CAN BE REVIEWED TO SUIT THE CAPABILITIES OF BOTH PARTIES.
When determining custody in Texas, the sex of a parent can not be used as a determining factor. This law is part of the Equal Rights Amendment of 1973. The Texas Family Code of 1987 states that Texas must ensure that both parents have continuing and frequent contact with their children as long as it is found to be in the best interests of the child.
The types of custody found throughout the country have similar descriptions, but the terminology can vary from state to state. Child custody in Texas is referred to as conservatorship, and a custodial parent is a child’s conservator.
There are two types of conservatorships in Texas, joint managing and sole managing. Read on to make sure you serve the best interests of your children during and after the divorce regarding custody arrangements.
Types of Custody
In Texas, child custody is referred to as conservatorship. There are two types, joint managing conservatorship (JMC) and sole managing conservatorship (SMC). Those two conservatorships take into consideration the physical and legal custody of the child.
The determination on custody incorporates various factors, including the current living arrangements of the child, how far apart the parents reside, how well the parents get along, parents’ work schedules, what the parents desire for custody and parenting time, and in some cases the desires of the children.
Joint Custody or Joint Managing Conservatorship
Texas operates with the belief that both parents should be named joint managing conservators (JMC). This means the parents will share equally in the decision making and care of the children. The judge may provide the parents with a list of responsibilities each holds jointly or separately.
JMC grants the parents joint legal custody of the child, meaning they will make decisions on things such as medical care, where they attend school, the extracurricular activities they participate in, whether they attend summer camp, the religious instruction they receive, and more.
JMC does not provide for the living arrangements of the child, nor does it mean that a child’s time with parents will be equally split. That is handled through a standard possession order (SPO).
Joint conservatorships frequently allow one parent the right to decide where the child lives. The parent with whom the child lives is the custodial parent.
Sole Custody or Sole Managing Conservatorship
When a court grants one parent sole managing conservatorship (SMC) it means that the parent has the ability to decide on the child’s care, including:
- The child’s primary residence
- Decisions regarding the child’s dental and medical care
- Psychological and/or psychiatric treatment of the child
- Being listed as the emergency contact on all the child’s records
- The right to attend the child’s school activities
- The right to receive child support
- The right to make decisions regarding the child’s education
There are various reasons for awarding an SMC to one parent, including:
- The parents are unable to get along, including a history of conflict on religious instruction and the medical and educational needs of the child
- One parent has a history of domestic violence or neglect
- One parent has not been an active participant in the child’s life
- One parent has a history of criminal activity, alcohol abuse, or drug abuse
When you are facing a child custody dispute it is always good to have an experienced child custody attorney on your wide. They will be familiar with child custody laws and court procedures to help you obtain the best outcome possible.
Pros and Cons of Sharing Physical Custody
Joint physical custody allows both parents to share equally in the responsibility for the care of the children and to spend equal time enjoying their children on a day-to-day basis. This allows the children to develop a close bond with both parents.
The negative side of this arrangement is that the children have to constantly change and adjust to living in two different households. This can prove stressful for the children if the parents are not cordial with each other or speak negatively about the other parent in front of the children. This can also be a more expensive arrangement for both parents as they are each maintaining permanent sleeping arrangements, wardrobe, and toys for the child.
Visitation or Standard Possession Order (SPO)
A Texas SPO will show access to a child and possession of a child. The judge creates a schedule and guidelines for the parents to follow.
Access refers to times you may communicate with your child when they are not with you physically. The order may allow you access by social media, telephone, video apps, or by attending their extracurricular activities.
Possession refers to the times when the child is with you, also referred to as visitation. An SPO will list the minimum times you are allowed possession of your child. An expanded SPO allows the non-custodial parent additional time with their child.
The SPO order will specify where the exchange of the child is to take place, what parent will have the child for holidays, and additional provisions if the parents reside more than 100 miles apart. SPOs are not required for children under the age of three.
Joint Custody Does Not Eliminate Child Support
Many parents feel that if they are awarded joint or sole custody they will not have to pay child support for the minor child. The child support division of the Texas Attorney General’s office establishes the steps for determining child support.
There are various factors that affect the determination of child support. These include the current income of each parent and each parent’s ability to earn. The “ability to earn” is an important factor in child support determinations.
This prevents a parent from taking a low-paying job to side-step having to pay child support. If the parent has a college education or previously held employment earning a higher income, their income may be imputed at a higher level during a child support review.
There are no restrictions on a sole managing conservator obtaining a passport for their child.
International Travel With Your Child
Following a divorce international travel with the child and authorization to obtain a passport for the child must follow the law.
A good portion of the legal requirements for traveling with children following a divorce is established in United States Federal Law. Those requirements include:
- Passport Application—for a child under the age of 16 both parents must be present and if only one parent appears they must have legal proof of sole custody
- State Department’s Children’s Passport Issuance Alert Program—if enrolled in the program they will notify a parent if someone requests a passport in the child’s name
- Consent to Travel—a parent not traveling with a minor child must provide a notarized statement consenting to their child leaving the United States
In Texas, the court may order one parent the exclusive right to maintain, renew, or apply for a passport for minor children. This order provides provisions for the application and possession of a child’s passport, including:
- The parent with authorization to apply for a child’s passport
- If a parent applies for a minor child’s passport, they must notify the other conservator within five days of filing the application
- The parent who will maintain possession of the minor child’s passport and under what circumstances they must deliver the passport to the other parent
- That a parent must provide the other parent with written notification of any international travel, including the time, date, and place from where the child will leave the United States.
There are no restrictions on a sole managing conservator obtaining a passport for their child.
Risk of Abduction
If there is a reason for a Texas court to suspect a parent may remove a child from the United States without authorization, they may take the following actions:
- Take possession of a parent’s and/or minor child’s passport to reduce the chance of the child being taken from the United States
- When the court takes possession of a passport they report that action to the Office of Children’s Issues to prevent the parent from replacing the passport
- Appoint someone other than the suspect parent as the sole conservator of the minor child
- Require the suspect parent’s visitation to be supervised
- Require a parent to post a bond prior to international travel for the purpose of pursuing an international abduction case if the child does not return
There are several abduction risk factors, which include:
- The parent has withheld or concealed the child from contact with the other parent
- The parent has threatened to take, withhold, or conceal the child from the other parent
- The parent has no financial ties to keep them in the United States
- The parent has taken actions indicating a move with the child outside the United States
- The parent applies for a passport or travel visa for themselves and/or the child
- Requesting the child’s school records or birth certificate
- The parent has a history of violating court orders
International travel with a minor child following a divorce may only be to countries that comply with the Hague Convention, ratified by 98 countries in May 2018.
The Best Interests of the Child
When fighting for the best interests of your child it is good to have a legal professional on your side. The law firm of Scott M. Brown is experienced in divorce and knows the types of custody, serving clients throughout the Houston area.
Contact us today at 979-849-8526 if you have any questions or to schedule a consultation. We look forward to talking with you.