Welcome to another edition of Bouschor Family Law Radio. Today we are talking about child custody and that is a term that a lot of people use when they’re considering that they are going to be getting a divorce. What does child custody really mean for parents who are worried about how their divorce is going to turn out and their relationship with their kids?
David: Well, often when somebody comes in and talks to me about custody the first thing I have to ask them is what they really mean by custody. In most cases, they are talking about their possession and access and what sorts of powers and duties they are going to have with their children. The right to set residency for your child is really what most people consider to be custody. When you set residency of your child, you are the parent that has the right to have the child living in your house. Customarily the other parent has a right to access, and that amount of access and timing of access and the pick ups and drop offs and things like that are either agreed to by the parties or ordered by a court. But if there’s not an agreement, the Texas Family Code does have what we call a Standard Visitation schedule and without an agreement that’s normally what is given out by the courts.
Tim: So really the best approach is to find an agreement and not have the courts set what the custody situation is going to be.
David: That’s absolutely true, I mean the geniuses in Austin who came up with the Standard Visitation schedule did not know you, did not know your family and doesn’t understand what your job requirements are or even maybe your child has special needs or educational requirements. So the people that are closest to that problem are the parents, and therefore they’re much closer to the solution than either a judge, jury or especially the people in Austin who came up with the Standard Visitation schedule.
Tim: The term that sometimes folks will hear is joint custody. What does joint custody really mean?
David: Well, in Texas there are three positions that you can hold with your child. One is joint custody, one is managing conservatorship, and one is possessory conservatorship. I like to, when I’m talking to my clients, have them think about those as badges. When you get a badge that says you are a Joint Managing conservator, both parents are called Joint Manage Conservators. And that’s a badge that you get to wear that says I’m a Joint Managing Conservator, but the real question is: what powers and duties are you given regarding your children? And that’s something that is either negotiated by the parties or given out by the judge. Now the term Managing Conservatorship is actually a term in the Texas Family Code, and if you are a Managing Conservator, then the Texas Family Code says what powers and duties you get. And the major duty there is the right to set residency of your child. If you are a Possessory Conservator, there is a list of powers and duties in the Family Code again and normally you get what is considered the Standard Visitation schedule if you’re called a Possessory Conservator.
Tim: So as a parent of a child, what is it that I need to be aware of as a go into a potential divorce, and how I will have that relationship with my children going forward?
David: Well, the most important thing is what is in the best interest of your children. And you would hope that the parents could work together co-parenting even after the divorce so that you are meeting what your child needs. When it comes to getting that agreement however, a lot of times people are so caught up in the fight during a divorce they’re really unable to come up with agreements regarding the children. Good lawyers will guide their clients towards an agreement, and they will be able to help them when the parties come up with an agreement that really won’t work long term, to hold up the mirror and show them what it really looks like and therefore guide them down the road that’s going to work the best for them. Without a doubt, you always want to settle these cases because they’re your kids. If that doesn’t happen then you are in front of a judge and then good lawyers are going to present your case the best way they know how and often throwing hand grenades back and forth is not the best way to run your case, and a lot of lawyers will try that. But the damage that’s done on those things sometimes shows up for years afterwards.
Tim: And when you say damage, you mean damage to the children.
David: Well, it’s damage to the children, but it’s also damage to your relationship with your now ex-spouse. And if you have an ex-spouse, you’re going to have to deal with them until those children are eighteen and have graduated from high school. So one of the issues that is often talked about in our office is, are you doing something that’s going to create a relationship that’s going to become untenable for the next ten years. Because if I’ve gotten you a big win but you can’t work with your spouse for the next ten years and every other year you’re back in court, I really haven’t done you a good job.
Tim: Alright, this has been another edition of Bouschor Family Law Radio.