The first decision that must be made in a Texas case involving children is whether there will be a primary household. The parents may agree that neither will be primary. The court order will state specific parenting times each will have with the children. The order should state how the children’s schools will be chosen. If the parents do not agree that there will be no primary, then a judge must choose one. Not designating a primary residence may only be done if the parents agree. If the judge decides, the law requires him or her to designate a primary. Texas law does not favor either the mother or father in decisions about child custody. The law requires a judge or jury to do what they believe is in the child’s best interest. The Texas Family Code includes rights for custodial parents.
Texas law does not use the term custody. Instead, legal documents refer to conservatorship of children.
The Family Code provides guidance for custodial parents about their legal rights and responsibilities including visitation, child support and decision-making after the fundamental issue of primary household is determined. Once we know which parent will have the right to designate the children’s primary residence, certain presumptions in the Family Code go into effect to resolve most of the details.
Nine Rights For Custodial Parents
Texas Family code section 153.132 lists nine primary rights for parents regarding children.
- The right to designate the primary residence of the child;
- The right to consent to medical, dental, and surgical treatment involving invasive procedures;
- The right to consent to psychiatric and psychological treatment;
- The right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
- The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
- The right to consent to marriage and to enlistment in the armed forces of the United States;
- The right to make decisions concerning the child’s education;
- The right to the services and earnings of the child; and
- Except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate f the child’s action is required by a state, the United States, or a foreign government.
*Of the nine rights listed above, the most important primary are 1, 2, 3 and 7.
Once these rights are designated, visitation and child support generally follow pretty easily based on Family Code presumptions.
Allocating The Rights Between Parents
When parents wish to share in their children’s lives and each want to be involved in making these decisions, there is no preferred or recommended method of allocating these rights.
Rights Exclusively To One Parent
If the rights go exclusively to one parent, then the other parent’s involvement in making such decisions is solely dependent on the discretion of the parent who is allocated the rights. For example, if a mother has the exclusive right to make educational decisions, then she can enroll the child in the school of her choice and give, or withhold consent about educational matters without even discussing with the father.
Rights To One Parent After Consulting With The Other
In some cases, the rights go to one parent but only after consulting wth the other. That means that one parent makes all decisions after taking into account the other’s opinion. For example, if a mother is considering changing schools or holding a child back a year, with this arrangement she would consult with the father and then make the decision. It would still be her sole decision.
Allocating The Rights Jointly
Sometimes the rights are awarded jointly. This generally means that the parents must agree on all decisions. When they cannot agree then the status quo remains until they agree to change it. There are instances where parents will agree that a third person, such as a school counselor or pediatrician, can make the decision if the parents disagree. This presupposes that the designated person will give an opinion. It also permits an unknown future person to make a decision about a child that is contrary to what one parent thinks is best. Be aware that you are presuming that the school counselor or pediatrician is equipped to make a good decision for your child.
Rights Awarded Independently
When the rights are awarded independently, the parents can make decisions without regard to each other. The father can take the children to one therapist and the mother can take them to another. Theoretically, the parents could enroll the children in different schools, which would lead to immediate litigation.
Letting A Judge Decide On The Rights
When a judge allocates these rights, this involves a trial. Occasionally people will want the judge to decide, without realizing that the judge must hear testimony and see evidence, which is a trial. Usually, if the parents are unable to work together to the extent they require a trial to resolve their disagreement, then the judge will award all of the rights to one parent, although not always. The law allows the judge great discretion in the way the rights are allocated and some judges can be creative. Others will simply say that if a mother and father cannot agree then the rights are exclusively going to one of them because it is not in the child’s best interest to require these two parents to agree before something can happen.
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© Copyright Brian McNamara 2020, may be reproduced with credit to the author.