Sole custody is a term thrown around a lot. In my office in downtown Tyler I meet with numerous potential clients seeking an attorney for a family law case, whether it be in Smith County, Gregg County, Rusk County, Henderson County, Wood County, Cherokee County or Upshur County. After they get their coffee, get settled in, and I get basic introductions and formalities out of the way, I typically ask some variation of a simple question: “What do you want the judge to order?”
A broad question to be sure, but this question isn’t just about determining what parents want out of their case. I want to know if they’ve thought about what they want. I also want to know how much detail they put into their response. And I even want to know how they phrase what they want.
Why? Because parents often don’t know what they want or what they can get in their family law case. Half the battle in the first meeting with parents is explaining their options, so client and attorney are on the same page.
Frequently, what parents want is sole custody. No term seems to be so common, with so many different meanings, depending on who you ask. To one person, sole custody means all visitation with the child, all rights…everything. To another, sole custody means essentially the majority of visitation and nothing else. To others, sole custody means the majority of visitation and the ability to make all major decisions.
In fact, the term custody isn’t typically used in the Texas Family Code (the statutes governing much of family law) and it isn’t typically used in court orders. If you go to the courthouse in Tyler, Texas and tell a judge you want sole custody, other than telling you to get an attorney, the judge won’t quite know what you mean.
The fact is sole custody means little to me and the courts, but it probably means a whole lot to the parent who knows little about the Texas family law justice system. So, when a parent says they want sole custody, I need to both inform and seek clarity; inform the parent how Texas law apportions out rights and duties relating to a child, and get clarification on how the parent wants the court to divvy out parental rights and duties.
In this post, I’ll break down the different parental rights and duties in a custody case. This will give parents a better understanding of what they can, or perhaps should, get in their family law case. This is by no means a post on what a judge might do or what you should seek from a judge, but it provides a general overview of the different aspects of family law cases.
You can’t know what you can or should get, unless you know what’s available to you in your family law case, whether it’s in Tyler, Longview, Athens, Rusk or Henderson.
Possession
Often called visitation, possession of a child is what many people consider to be the only and most important issue in their family case. But possession is just one aspect of the case. Possession of a child must be set out in the court order. And it can be much more detailed and complex than you might think. It should be detailed and sufficiently clear so that the parents know what to do regarding all aspects of possession.
Picking up and dropping off the child, Summer visitation, Spring Break visitation, Thanksgiving visitation, Christmas visitation, Mother’s and Father’s Day visitation, Birthday visitation, air travel (if parents are far apart), whether visitation should be supervised by a friend, relative or professional supervisor, and even whether visitation should be “therapeutic” such as in the course of counseling, all these issues and more can be part of your possession terms.
Attorneys regularly advocate in court and negotiate in settlement proceedings for certain possession terms, no matter how specific or seemingly silly to others. Parents can fight over whether the exchange spot should be the Tyler Police Department or a local McDonalds in Tyler or a local community like Bullard, Whitehouse or Lindale.
Parents can fight over whether a relative that had an assault family violence conviction in Smith County should transport the child. Parents can fight over whether a father should have possession of his under 3-year-old per the regular standard possession order or should build up to the standard possession order. Parents can fight over where a child can travel to, or who can be around a child, such as a boyfriend or girlfriend or a person with known drug issues.
Possession terms, as a general matter, can be as simple or complex as you like. A local Tyler attorney that practices family law in Tyler, Smith County, and surrounding counties like Rusk, Gregg and Henderson counties will be best prepared to advocate for your desired possession terms. A local attorney will know the judge, which is important in family law, where judges have great discretion and can have different viewpoints. And a local attorney will likely know the opposing attorney.
Finally, a local Tyler attorney will know local resources available to clients, like counselors, rehabilitation options, and expert witnesses.
Conservatorship
In Texas, a parent’s rights and duties are generally known as conservatorship. If possession relates to all aspects of…well possession of a child, conservatorship relates to all duties and responsibilities to a child other than possession. Issues like who makes medical, educational, moral and religious decisions, who designates the primary residence of the child and/or the school, who controls the passport, who manages a child’s estate (if any), and numerous other issues can all be wrapped up in conservatorship.
Conservatorship can be quite confusing, especially when you hear terms like joint managing conservatorship and sole managing conservatorship and possessory conservatorship, each of which carries a pretty specific legal meaning under Texas law.
An often-litigated aspect of conservatorship is who designates the primary residence, and if there is a geographical restriction. Geographical restrictions are discussed in more detail here. These restrictions can prohibit the primary parent from moving out of a certain geographical area, such as Smith County and contiguous counties or from 50 miles from the Gregg County Courthouse. Yes, even your freedom to live where you want is affected by conservatorship.
Child Support
If possession is considered by many to be the most important aspect of their family law case, child support has to be a close second. Child support is often fought over. Aside from ongoing child support, which typically lasts until a child is 18 and graduates from high school, a parent can try to obtain retroactive child support.
Retroactive support can be a huge boon to the person receiving it and a real headache to the parent paying, so it’s obviously important to secure an attorney if you have retroactive child support at play.
The child support amount ordered is often determined according to statutory guidelines, so you hear the term “guideline support” quite often in family law circles. Guideline child support is a percentage of your net resources, but net resources isn’t necessarily your take home pay but is your gross income with some deductions. It’s important to get an attorney on child support cases, even if only to help ensure the child support you pay or receive is in accordance with the guidelines.
Child support doesn’t have to be guideline however, and judges have discretion to order less and sometimes more than guideline child support depending on many factors, including the travel burden placed on the obligor, whether the parents have nearly equal possession of the child, whether a parent moved far away and required the non-primary parent to pay more for transportation costs, and the needs of the child, such as whether the child has a disability or works and has some income. Whatever the situation, a local Tyler area attorney can help ensure you pay as little as possible or receive as much as possible.
Health and Dental
Suffice it to say that you need health insurance for your child, and courts require one person to provide insurance or get it soon. If the non-primary parent doesn’t provide the insurance itself, he/she can be required to pay the other parent for the monthly premium attributable to the child. This can be a huge added expense on top of child support.
If the non-primary parent provides the health insurance, he or she gets a break on child support; the health insurance premiums for the child come out of the net resources amount.
While you may not think of health and dental insurance as a big issue in your case, it certainly can be. You would be wise to consult with a lawyer that commonly practices family law, as these issues are quite specialized and confusing.
Aside from who provides and who pays for the insurance, uncovered medical expenses are also going to be part of your family law case. Typically, uncovered expenses are reimbursed 50% by the other parent. So, generally speaking, if you pay a medical expense, you can request the other parent pay 50% of the bill. This is a greatly simplified explanation. An attorney can explain this process.
Conclusion
When you understand that sole custody isn’t really a thing, that conservatorship is important too, that possession can be customized and incredibly detailed, that child support can be up for debate, when you understand the different aspects of your family law order you can begin to make the right decisions. As attorneys, one of our primary jobs is to counsel, to explain. Utilize us! Even if you only need advice and don’t know if you want to file a case or use an attorney, a local lawyer can help. Once you understand what a custody order can contain, you can figure out what you want in yours.
