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22 April 2023

Experienced Houston Child Custody Lawyers To Help Navigate Conservatorship and Possession & Access

Parenting involves balancing love and responsibility. When you are going through a Suit Affecting the Parent-Child Relationship ("SAPCR"), that balance becomes even more challenging. As a result, conflicts can escalate into costly litigation. With so many parents struggling with this kind of situation, it’s no wonder there are so many parents struggle to resolve their coparenting issues without the need of attorneys and the courts. Below we discuss rights and duties and how those, and related issues, are decided in Texas family law.


What Is Conservatorship?

Conservatorship is the legal term in the State of Texas for a type of legal custody arrangement over a child. It can be joint legal or physical custody where one parent has primary custody or managing conservatorship, it can be truly equal split of responsibilities and time, or it can be a type of custody where one parent makes all decisions and the other parent has standard to limited possession or access.


In short, conservatorship is the legal term when for how rights to make decisions about the child, and duties on a parent (for example, to pay child support) are allocated.


What Are Conservatorship Rights and Duties?

When parents have a child together, sometimes one parent does not have the same rights and duties as the other. This can be either through joint managing conservatorship or sole managing conservatorship.


If parents are appointed joint conservators, how they make decisions for the child needs to be determined, with the parents often sharing in some decisions and one parent having the exclusive right, to make decisions about things like:

  • Invasive medical and dental care,

  • Psychiatric and psychological care,

  • Educational decisions, and

  • Where the child's primary residence will be (the home of the person who has primary custody).


A geographic restriction can be imposed on where that person with the exclusive right to decide primary residence, restricting that person's ability to move away with the child. The person who doesn't designate the child's residence typically has the duty to pay child support.


Here are some examples.

  1. If a mother and father are awarded joint managing conservatorship, it may be that the mother is awarded the exclusive right to decide the primary residence of the child as well as educational rights, but mom and dad have to agree on invasive medical care. Mom could be restricted to live with the child only in the county they both live in, and dad would likely be ordered to pay child support to mom.
  2. Now, if the father is awarded sole managing conservatorship of a child, he will have the power to make all decisions that concern the child's welfare. He will also establish a primary residence for the child (which could still be restricted to a specific area). The mother, in contrast, would be a possessory conservator, only have possession or visitation rights because she would not be involved in day-to-day parenting decisions. Mom would likely be ordered to pay child support to dad.


What is Possession and Access?

Whomever the child primarily resides with will have the child at times not specifically awarded to the other parent or set forth for them specifically (like for splitting of holidays). In short, the other parent whom the child doesn't live with gets possession and access to the child. Possession refers to being able to take the child home, on trips, or otherwise away from the primary parent. Access is when the non-primary parent gets only temporary visitation with the child, usually without the ability to remove the child from the place the visit will occur; this is typically used in cases where there is a concern for the child's safety being alone with that parent (due to allegations of abuse, drug or alcohol abuse, or other reason). The difference between possession and access is that one gives you temporary custody while the other gives you visitation at a specific location.


Presumption of a Standard Possession Order (SPO)

In Texas, a Standard Possession Order (SPO) is a court-ordered visitation schedule that applies to parents who do not agree on a parenting plan or who cannot come up with one that the court approves. The SPO outlines the non-custodial parent's visitation rights and typically provides for visitation on the first, third, and fifth weekends of every month, alternating holidays, and extended time during the summer.


Under the SPO, the non-custodial parent has possession of the child from 6:00 p.m. on Friday to 6:00 p.m. on Sunday during the first, third, and fifth weekends of every month. The non-custodial parent also has possession of the child on certain holidays, such as Thanksgiving, Christmas (which is roughly split in half with an exchange at noon on December 28) and spring break, in either even or odd-numbered years. The custodial parent would have possession of the child on opposite years for those holidays.


The SPO allows for extended visitation during the summer, giving the non-custodial parent up to 30 days of consecutive possession of the child (if residing within 100 miles of the child's primary residence). The extended visitation can be split into two periods of at least seven days each. The non-custodial parent must give written notice to the custodial parent by April 1 of each year if they intend to exercise their full 30 days of summer possession.


Alternatively, the SPO allows for expanded visitation if both parents live within 100 miles of each other. Under the alternate start and stop election, the non-custodial parent can elect to start their weekend possession immediately after school on Friday and end it when school resumes on Monday morning. Additionally, the non-custodial parent can elect to have possession of the child on Thursday nights during the school year, which allows for an additional overnight visitation period. These alternate start and stop elections are subject to agreement between the parents or court approval, but the right to make these elections is presumed in the best interest of the child if a SPO is also found in the best interest.


What is the "Best Interest of the Child" And How Does That Concept Play Out in Texas Child Custody and Visitation Fights?


The "best interest of the child" is a primary consideration when it comes to Texas child custody and visitation fights. Whenever parents are involved in a custody battle, courts will always consider the interests of your child before making any decisions. This means that both parents must put aside their own personal differences and focus on what is best for the children in question. Failing to do so can result in a loss of custody: courts do not look favorably on parents who use their children as weapons to hurt the other parent, whether it is withholding the child from visits or encouraging the child to act out or not go.


When it comes to creating a custody arrangement, both parties should come to an agreement on how decision making and parenting time should be divided between them. If they don't, the court will decide those things based on what they believe is in the best interest of the child and issue a child custody order or agreement accordingly.


How is a Custody Order Modified?

The process for modifying custody in Texas can be complex and requires a thorough understanding of the state’s laws and court procedures. However, with the help of an experienced family law attorney and a good understanding of the basics, parents can navigate this process successfully.


Material and Substantial Change in Circumstances

First, it’s important to understand that a court order establishing child custody is legally binding and enforceable. However, Texas law recognizes that changes in circumstances can arise that may require a modification to the existing custody order.


According to Texas Family Code, modifications to child custody can be made when there is a “material and substantial” change in circumstances that affect the child or the parent’s ability to care for the child. These changes can include:

  • Relocation of one or both parents

  • Change in the child’s living situation or medical needs

  • Significant change in the parent’s work schedule or employment status

  • Incarceration or a new criminal charge against a parent

  • Substance abuse or addiction issues of a parent

  • Child abuse or neglect


If any of these circumstances arise, a parent may file a modification suit with the court.


Starting a Modification Suit

The first step in this process is to prepare and file a petition for modification with the court that issued the original custody order.

It’s important to note that a petition for modification must be filed in the same county where the original custody order was issued. Additionally, the parent seeking modification must be able to show that the proposed changes are in the best interests of the child.


Temporary Orders in a Modification Case

Once the petition is filed, a hearing on temporary orders can be requested if relief is needed before a final trial is scheduled by the court. During temporary orders, both parents will have the opportunity to present evidence and testimony supporting their position.


One thing that is different in temporary orders from a trial is that to change who the child primarily resides with (who has the exclusive right to designate the primary residence), the party seeking the change must meet a much more difficult burden of proof.


Changing Primary Custody in Temporary Orders

During a pending suit for modification, the court cannot make a temporary order that changes who has the exclusive right to designate the primary residence of the child or the geographic area where the child must live under the final order unless it is in the child's best interest AND either: (1) the child's present circumstances would significantly harm their health or emotional development, (2) the designated person has given up primary care for more than six months, or (3) the child is 12 or older and expresses a preference for the person (filing the modification) who should have the exclusive right to designate their primary residence. The petition requesting the hearing on temporary orders must state one of these grounds and, if the claim is that the present circumstances pose a significant risk of harm, an affidavit must be attached to the motion stating the facts supporting that allegation; if the court finds the allegation inadequate, the court must then deny the request for a hearing.


How Our Experienced Child Custody Lawyers at the Longino Law Firm Can Help With Your Child Custody Dispute

Longino Law was founded by Tristan Longino, a Board Certified family lawyer and former presiding judge of the 245th Family District Court in Harris County, Texas. Longino Law has a breadth and depth of knowledge hard to find anywhere else. Our skilled child custody lawyers can help you navigate the complexities of family law and handle your child custody dispute.


We understand that no two families are the same and tailor our services to meet the individual needs of each client. Our attorneys have years of experience in resolving a variety of family law matters, including those related to child custody disputes. We take a compassionate approach to all cases we handle and strive to ensure that you receive the best possible outcome from your legal proceedings.


Whether you are looking for mediation or litigation services in Texas, our team of experienced family law attorneys at Longino Law Firm are here to help for cases in Houston and the surrounding areas, serving the following counties: Harris, Galveston, Brazoria, Montgomery and Fort Bend. Let us help you reach a favorable child custody agreement or, if that isn't possible, help win your case. Contact our firm today.

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