Do I get 50/50 possession if I get joint custody?
The answer we give them is for the most part – NO. This is a question in most divorces that we get from clients that have children and want to have a co-parenting plan with their children. However, we always explain the public policy in Texas is generally going to be that the courts are going to make a ruling in any divorce with children that assures that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child. Secondly, the parents must be able to provide a safe, stable, and nonviolent environment for the child. Thirdly, the courts encourage parents to share in the rights and duties of raising a child after the parents have separated or dissolved their marriage. However, Texas courts will not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.
What about the best interest of the child?
Texas courts will state that the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to a child. Trial courts are given a wide latitude in determining the best interest of a minor child. The judgment of the court will be reversed only when it appears from the record as a whole that the court has abused its discretion – Gillespie v. Gillespie.
Other cases have held that an extended number of factors have been considered by the courts in ascertaining the best interest of a child. Included among those factors are the desires of the child, the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, the parental abilities of the individuals seeking custody, and the stability of the home or proposed placement of the child.
In the case, Allen v. Allen, the court determined that the best interest of the child was served by appointing the father and not the mother as joint managing conservators of the child with the father and not the mother as the parent with the exclusive rights to determine the primary residence of the child. The court emphasized that the mother has persisted and would likely continue to persist in preventing the child from having any chance at a relationship with the child’s father. The court further expressed doubt as to whether, if the mother was given the exclusive right to determine the child’s primary residence, that the mother would ever allow the child to have a good relationship with the father. Such persistent alienation of the other parent can be a guiding consideration of the other parent can be a guiding consideration in making possession and access determinations.
What if I am the father, will I get a fair ruling?
The Texas Family Code in section 153.003 states that no discrimination based on sex or marital status in allowed to be considered by Texas courts in rendering a ruling on conservatorship of a child. The Texas law states that the Court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining which party to appoint as the primary or sole managing conservator of a child or to establish the terms and conditions of conservatorship and possession of and access to the child. In one Texas court, the court ruled that the state no doubt has a significant interest in protecting the welfare of a child born to a mother not married to the child’s father. Nevertheless, the state’s interest can be protected without discriminating solely on the basis of sex. Generally, a father who steps forward, willing and able to shoulder the responsibilities of raising a child should not be required to meet a higher burden of proof solely because he is a male.