In Texas, there is a rebuttable presumption that parents should serve as the Joint Managing Conservators of their children.
Joint Managing Conservatorship does not mean that each party will have the children one-half of the time. It also does not mean that child support will not be awarded to one parent. Joint Managing Conservatorship does mean that the parents will either share, allocate, or apportion parental rights and duties. In most cases, it also means that the child's domicile must be established in the final Court orders.
In the absence of extenuating circumstances, it is advisable for parents to work out appropriate custody arrangements rather than have strangers do it for them. A custody fight involves a great deal of time, emotional and financial expense, and can be very rough on the child(ren). It will be easier for your child(ren) if the child(ren) is kept out of the parents' conflict. This is not possible if a trial occurs. If you are able to reach an agreement, and make a commitment to work together to resolve disputes that may arise in the future, it is very probable that the child will be able to have both parents for important events in the child's life. To emphasize the importance of parental cooperation, many courts are now requiring all parents to attend parenting or divorce education classes before the court action can be finalized.
Obviously, there are going to be situations where a custody fight is the only option. However, it is very important that you thoroughly discuss your concerns, options, and position with your attorney before making the decision to take this issue to trial. Mediation services are available to assist the parties in formulating appropriate custody arrangements. The Court will usually also order mediation. As a general rule, mediation proceedings are confidential and privileged.
Communications with counselors are not privileged or confidential if the information is relevant to issues concerning the parent-child relationship.
In those cases where an agreement cannot be reached, professional services may be required to assist the Court in making a decision. In Dallas, it is customary to order a Social Study to be performed by Dallas County Family Court Services. The Social Study will involve the completion of informational data, gathering of references, and an interview in their offices and/or home. A recommendation on conservatorship will be made to the Court at the conclusion of their investigation. The Court may also order psychological evaluations of one or both parties and/or the children. Additionally, you or your spouse may wish to retain psychiatrists, psychologists, or private custody evaluators.
If 12 years of age or older, a child can sign an affidavit stating whom the child would prefer to live with. This is not binding on the court. It is a piece of evidence, just like all the other evidence. However, the court realizes the problems in ordering a sixteen year old child to stay with a parent with whom he does not want to reside. If younger than 12, the child might have the opportunity to speak with the judge. There is no guarantee of this.
Once a decision is made concerning conservatorship, provisions for periods of possession are generally determined by guidelines enacted by the Texas Legislature commonly called "Standard Possession Order".
You need to review these guidelines for possible modifications to fit your family circumstances. For example, if one parent's family always celebrates Christmas Eve and the other parent's family always celebrates Christmas Day, and everyone lives within close proximity, the schedule can be altered so the child has the advantage of being with both families each year. Persons of different religious affiliations will want to add holidays specific to their faith.
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