Hosted By: Diana Shepherd, the Editorial Director of Family Lawyer Magazine, divorcemag.com, and divorcemoms.com
Guest Speaker: Brian McNamara
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Read the Transcript of this Podcast Below.
Diana Shepherd: I am Diana Shepard, the Editorial Director of Family Lawyer Magazine and DivorceMag.com. Joining me today is family lawyer Brian McNamara, who’s here to discuss child conservatorship, formerly known as child custody in Texas. If you are a Texas parent going through a custody dispute, keep watching. In the next few minutes, Brian is going to answer some of the most frequently asked questions parents have about Texas child custody laws. Thank you, Brian, for taking the time to speak with us today.
Brian McNamara: Thanks very much for inviting me.
Diana Shepherd: Let’s dive right in. Most people think of the terms custody and visitation when it comes to a child’s living arrangements during and after a divorce. I understand that Texas uses the term conservatorship, possession, and access. Can you give us a brief description of what these terms mean?
Brian McNamara:Absolutely. So even though we talk about custody in a conversation and in advice, and even in court, the legal documents do not use that term in our state. We prefer to use possession and access. Possession is what someone thinks of as visitation. They can pick up the child, take the child or children away for a weekend or whatever and bring them back. Access is more specific where they can come visit with them but not leave with the children. In terms of custody, we divide up the parenting time. So, what’s most common is for the parents to be called joint managing conservators. There are still rights about the kids that have to be resolved, like who gets to determine their residence, which is basically custodial, who makes education decisions, medical decisions, psychiatric and therapy decisions, and things like that. But rather than custodial, we typically have joint managing conservators. Sometimes there’s a sole managing conservator, but that’s not too common.
Diana Shepherd: So, we used to talk about sole custody or joint custody. What roles are available for a divorced parent in Texas and what are the rights and obligations of those roles?
Brian McNamara: That’s similar to what I was talking about. Sometimes people will say ‘I want sole custody.’ And first of all, as I said, Texas doesn’t use the term custody and people have different views of what that means. So, sole custody really would mean termination of the other parent’s parental rights, and that is very rare. So, what ends up happening is we end up dividing the parent’s parenting time with the children. So typically, parents have joint managing conservatorship, and then like I said, the right to decide where the child lives is allocated, the right to make medical decisions, and the right to make psychiatric, psychological, and educational decisions are also allocated. There’s a statutory list of 10 rights. Those are the most important. They can be allocated in various ways: Solely to one parent, which is maybe the closest to sole custody, I guess. But what’s very common is that the parents must agree. So, if they don’t agree, nothing changes, and the situation remains the same until they agree. When it’s an educational decision and certain types of medical decisions, sometimes one parent can decide after consulting the other. So, there are different ways to allocate those rights to keep everybody involved in the children’s lives and in making decisions about them.
Diana Shepherd: So how is conservatorship or what we used to call child custody determined in Texas?
Brian McNamara: Well, what the law says is it’s supposed to be in the best interest of the child, and it always is. I mean, there are those who would maybe disagree, a few cynics, but it is made in the best interest of the child, but it’s made based on what the person or people making the decision think is best. That could be a judge, it could be a jury. We have a statute that says gender can play no part. In most courts in Texas, it doesn’t. Dads can get primary conservatorship and they do. Primary means, basically the right to determine the children’s primary residence. The factors that go into it are typically who has done most of the parenting before the case was filed, and also somewhat during, but mostly before. So, which parent is the one who has typically made the doctor and dentist appointments and taken them to the appointments, meets with the teachers, help with the homework, and attends the meet the teacher night? As I said all those day-to-day things.
It still tends to be more… Well, let me say it this way. It tends to be more moms, but that’s because they still tend to do more of that the daily parenting. But there are a lot of cases where dads get custody because dad is the one doing that. Mom’s got a good career going and they’ve made the decision that he’s going to do the parenting so he’s the one who’s done all that, and the least disruption to the children is to maintain that. So those are the biggest factors. Ultimately judges want to know who’s going to exercise the best judgment with regard to these children because obviously, the judge isn’t going to be there making the decisions, but a jury can decide that question also. They get the same instruction as the judge has, do what you think is in the child’s best interest. Some cases are easy, a parent disqualifies themselves for drug use or something. But most of them, it’s just a question of putting on the evidence if you have two adequate parents. The fact finder, which is the decision maker, decides what they believe is in the children’s best interest.
Diana Shepherd: So, if the children are splitting their time between two homes, either mom and dad’s house, or mom and mom and dad and dad, depending on their situation, is it always 50-50? Can you talk a bit about the most common types of living arrangements for children during and after divorce?
Brian McNamara: Yeah, sure, sure and that’s a good point. Whoever the parents are, we divide the time amongst the children. There are two ways to approach it. I apologize for backing up for a minute. There are two ways to approach it. If a judge makes the decision, the judge is supposed to start with what’s called a standard possession order. I’ll describe that in a moment. Or the parents can decide what they think would be best, and they can put that into a mediated settlement agreement, which the court must honor. The standard possession order, which is the starting point for judges, says that the parent who does not have the right to designate the children’s primary residence, basically the visitation parent would pick them up from school Thursday, and bring them back to school Friday morning. On the first, third, and fifth Friday of each month the parent picks them up from school and brings them back to school Monday morning.
So, when it’s that parent’s weekend, they pick the kids up from school Thursday, and they have them until Monday morning. The next week they have them Thursday overnight, the weekend is the other parent’s time, so they don’t see him again until Thursday. That’s a long stretch. That’s the starting point that the law says the judge should start with as a presumption. A judge can deviate if the evidence supports it. Most commonly, parents make agreements and those are all over the place. Sometimes they’ll say one parent gets Wednesday and Thursday, so it’s what I described, but instead of just Thursday, it’s Wednesday and Thursday. So now one parent has Monday, Tuesday and the other has Wednesday and Thursday. Sometimes they’ll do a week on, week off.
The most important factor when you expand the time or you get closer to 50-50, the most important factor is that the parents must live close together. The law doesn’t say that; it’s my opinion because if you’re doing a week-on, week-off, or two days and two days during the school week and one parent lives 10, 15 miles from the children’s school, the kids are in traffic all day going home, and then they’re getting up at five in the morning to get to school. So, it’s really important to have a commitment, which we’ll usually try to put into the order that the parents must live within a very tight radius of some central point or within a defined boundary. So anyway, if you ask the judge, you could get what I described, which is the standard possession order, that’s the Thursdays and alternating weekends. It also splits the holidays, splits Thanksgiving, gives 30 days in the summer, alternate spring break, and splits Christmas. Or you can make an agreement on what you think is best for your kids and your family.
Diana Shepherd: Is it possible for both parents to have equal rights and decision-making powers regarding their children, whether or not the children split their time equally between both homes?
Brian McNamara: Yes, it is. It is possible. That’s where you take those 10 rights that I mentioned and allocate them jointly. That means that the status quo remains unless both agree to change it. So, for example, Texas law allows the parents to file an agreement that says the children will have no primary residence. Incidentally, if the judge decides, the judge must designate a primary residence. That’s because the judge is deciding in a trial, and the parents couldn’t agree amongst themselves, so the legislature decided we need some stability where one parent makes that decision, but by agreement the parents can decide there will be no primary residence. When they do that, we have to work out where they will go to school, and who will choose their school because that’s the big issue. If there’s no primary residence, you don’t want parents enrolling them in two different schools.
Then the rest of the decisions, the right to make psychiatric and counseling decisions, the right to make other educational decisions, and the right to make invasive medical decisions, can be joint and by agreement. So, whatever the status quo is, it remains unless they both jointly agree to change it. So, in that respect they can have equal rights and child support is one of the 10 rights that are in that important section. That can be adjusted based on the time people are going to spend with the kids. That can be very, very contentious litigation if we’re doing a 50-50 and one parent makes a lot more money and feels like their child support should be adjusted, and the other one doesn’t agree. Sometimes they’re accused that they’re only seeking 50-50 to pay less child support. That can be contentious. It’s not always simple, and is very unpredictable as to what a judge will do in that circumstance.
Diana Shepherd: How can a parent increase his or her chances of being named sole managing conservator of their children in Texas?
Brian McNamara: Well sole is a very high bar to get to. That usually is dependent on the other parent, okay? So, you can’t do a lot to increase your chances of being the sole managing conservator unless the other parent is just totally unsuitable to participate in parenting. It’s not a termination of parental rights by any means, but it’s the same kind of evidence. I mean, they have to be unsuitable. Now, there are circumstances where both parents could be suitable, but the relationship between them is so volatile and so toxic that a judge will decide it’s best for the children that one makes all decisions, and the judge decides to appoint one as a sole managing conservator, even though the other is not that bad. It’s more because these people are just going to ruin the children’s lives by fighting day and night so we’re going to separate the decision-making.
As far as increasing the ability to be the primary joint managing conservator, to have the right to decide where they live, so the other parent has a standard possession order visitation schedule, those are factors like day-to-day parenting. Who is most involved? Some of it is reflected on paper. So, we look at the school records to see who’s signing the school records, who is attending school events and doing the sign-in, and sign-out sheets. Sometimes we look at medical, and dental records. Sometimes they’ll reflect who brought the children to the appointment. Is either parent coaching an extracurricular activity? When kids are involved in baseball, football, soccer, whatever, is a parent coaching?
Some of it is testimony and that’s where people can help themselves by knowing the teacher’s name, know the child’s friend’s names, and know who they’re on the outs with, etc. Last week Mary was their best friend and today they don’t like Mary or whatever the case may be. If it’s a toddler when you ask the parent who doesn’t do the primary parenting what kind of diapers does the toddler wear? And they don’t know because they’re not buying them. Those are the things that come down to knowing all of those facts about the child, knowing their favorite food this week. So, when you’re testifying, you can describe your child, not just in general terms. Certainly, demeanor is important, and behavior is important, but also, it’s specifics that show involvement; last week kid loved Cheerios, but this morning the toddler threw the bowl of Cheerios across the room and hates Cheerios this week. Those are things that are important also, and that’s what people can do. They can learn that information and they can increase their involvement in the child’s life.
Diana Shepherd: What are some of the common mistakes that you’ve seen made in a child custody dispute?
Brian McNamara:The most common is thinking that the secret to success is beating up the other party. And of course, I don’t mean physically, but I mean people think that the judge or the jury has only two options – two parents that if I disqualify the other, it must be me. And the truth is that sometimes works, but I have seen cases where parties did such an adequate job ruining the other’s parenting ability that the judge instructed the bailiff to retain them in the courtroom while the Children’s Protective Services went to school to get the children. The judge said during the hearing, I’ve called CPS, none of you are getting these kids. It wasn’t my case; I happened to be watching.
It is way more important to show the judge or the jury why you are the best choice so that if a judge makes the decision or a jury, they leave the courtroom feeling they did a good thing for these kids. They’re in a good place and the person’s going to make good decisions and take good care of them, rather than making them feel like they just made the best of two awful decisions, and they’re really worried about these kids. So, it’s really important to show why you’re the best choice. To some degree, it’s almost like a job interview where it’s important to show you’re the best candidate, not to sit there and beat up on the other candidates. That’s not going to get you the job. So that’s one of the biggest mistakes people make.
Other than that, the other one is similar, is where a parent who has not been the primary day-to-day parent of the children has a sort of a conceited attitude that they’re just so good they don’t need to learn all the facts that I described earlier. And they’re just going to go in and show why the other one doesn’t know what they’re doing and that’s all I need to do because I’m perfect. That usually fails and can be traumatic on cross-examination for them when it comes down to all the things they don’t know. So those are the biggest factors.
I suppose the third would be not being willing to do the work. A custody case is very time intensive. It’s a lot of work and we need a lot of information from our client, and sometimes people just don’t want to do the work to provide us with everything we need, so it’s harder to get adequately prepared.
Diana Shepherd: If one parent removes the children from the state without the other’s consent. What can the other parent do to have their children returned? Even if they get a court order how can they enforce it?
Brian McNamara: Okay, so yes, the second part of that question can be very difficult. The first part not so much. Texas doesn’t have parental kidnapping absent a court order. So, unless there’s a court order about the children, a parent can take them anywhere they want. If a parent leaves with kids and files for divorce or leaves right before a divorce is filed, the judge in Texas will likely order the children returned. If the parent doesn’t bring them back, the case will probably proceed here and ultimately the parent here could get primary conservatorship. There are entire statutes related to this called Uniform Child Custody Jurisdiction and Enforcement Act, and Uniform Interstate Family Support Act. UIFSA is the acronym for the Support Act. What those deal with are interstate issues within the United States, not international issues.
So typically, if a parent leaves with the kids when there’s no court order in place and the case is supposed to be in Texas and Texas has jurisdiction and venue, they’ll be ordered to bring it back. If they violate a court order and leave with them, they’ll be ordered to bring them back. If they ignore that order, then ultimately the parent in Texas may have to hire a lawyer in the state the other parent ran to, and have that lawyer go to their courts to get the Texas order enforced. It is rare, but ultimately law enforcement can be ordered to go take the children and seize them. Rarely does it ever get to that, but it can, and a Wyoming sheriff is not going to act on an order from a Texas judge. So that means that if they run with the kids to Wyoming and we have an order for custody out of Texas, ultimately the parent could have to go to Wyoming, get a lawyer there, and get that lawyer to have a judge sign an order enforcing the Texas order, which they’re supposed to do and then the sheriff can go get the kids.
More commonly, if you take your Texas order to Wyoming, you take them out of school and fly them back. But we hate to do that because it’s very traumatic for them. Usually, it doesn’t come down to that. Usually, the parents end up saying, okay, I’ll comply with the order. But ultimately that could be the route.
Diana Shepherd: My guest today has been Brian McNamara, a family lawyer at McNamara Law Office in Kingwood, Texas. Brian is licensed to practice in all Texas courts, including the Supreme Court of Texas. If you are facing child support or a custody conservatorship dispute in Texas, Brian and his team are ready to help. For more information, please visit www.mcnamaralawyers.com. Thanks very much for your taking the time today, Brian.
Brian McNamara: No problem. Thank you for inviting me.