Time and time again, when someone comes in wanting to hire the law firm for a divorce case, they come in with some preconceived notions which they discovered online or through some well-meaning friends. Unfortunately, the majority of the time, these notions are incorrect. Here is a list of the most common misconceptions
1. You can obtain “full” custody because your spouse cannot be trusted, is not responsible, doesn’t spend time with the kids, is seeing another person that you or the kids do not like, or any of a number of laundry list reasons.
In Texas, when a divorce involves children, the court will automatically presume that the parents should be named Joint Managing Conservators (“JMC”). JMC does NOT have anything to do with possession and access of the children; rather, it deals with the rights and duties each parent has over the children. Under JMC, each parent will have the same rights as the other parent except for three (3) rights that must be determined by agreement between the parents or by the court. The first is which parent will be paying the other child support? Whichever parent is required to pay child support will also be responsible for providing medical support, which includes medical and dental. And, finally, the parent that receives child support will be able to determine where the children live, typically within a geographically restricted area.
Now, the opposite of JMC is SMC, or Sole Managing Conservatorship. SMC is not “full” custody as the other parent, known as the possessory conservator, will still have possession and access to the child; rather, SMC means that one parent has more rights than the other parent, above and beyond the three listed above. If a parent is named SMC by agreement or by court order, that parent will have exclusive decision-making rights over certain things, such as educational decisions, invasive medical or dental procedures, psychiatric or psychological decisions, and a few other rights. Once again, it has nothing to do with possession and access of the children.
2. When parents are named Joint Managing Conservators, they have the children an equal amount of time.
Once again, this is false. In the Texas Family Code (“TFC”), there is no such thing as 50/50 in terms of possession and access; rather, the TFC has two different set schedules and, typically, the only way to obtain a true 50/50 possession schedule is to reach an agreement. The majority of judges will not create a 50/50 possession schedule because they do not want to experience any backlash or have the case back in court if it doesn’t work out. Judges would rather be safe and will order the schedule in the Texas Family Code. If it’s a standard possession schedule, that’s about a 60/40 split. If it’s extended standard, that’s about a 52/48 split.
3. One parent must be named the “primary” parent of the children.
The word primary will never show up in a final decree of divorce; rather, it is simply a term used by attorneys to identify which parent is receiving child support. Typically, the parent that receives child support is also the parent who decides the “primary” residence of the children for school purposes. Since the children will now have two homes, the school will need to know which home is the primary residence.
4. Children over the age of 12 can decide which parent they want to live with.
At the age of 12, a party may request that the judge speak with a child but anything the child says is just an opinion. Just because little Johnny wants to live with his dad does not mean it will happen. In addition, even if the judge agrees with the child and decides to appoint one parent as “primary” over the other based on what the child said, that will only affect the three rights discussed above, child support, medical support, and primary residence. The other parent will still be able to see the child. And, yes, even if the child does not want to see the other parent, the primary parent will be required to make the visit happen even if the child is kicking and screaming.
5. If the parent responsible for paying child support does not pay, you can refuse access to the children to the non-paying parent.
Payment of child support has nothing to do with possession and access of a child. If a parent is not paying child support, the Attorney General can file a lawsuit to correct that, or the parent who is supposed to receive the support can also file their own lawsuit. Be very careful about restricting possession and access to the children as that is a violation of its own.
So, do not believe everything you read online. Instead, seek the legal assistance of attorneys that can help you. Dodson Legal Group is here for you in family law matters, as well as many other legal cases. Visit our website at DodsonLegal.com or contact us today at 469-400-0000. Stay tuned for more misconceptions to come in next month’s article.