Oftentimes during child custody visitation child custody cases, a client's main objective will be to secure “primary custody” of their children. While this phrase is used often by both clients and legal professionals alike, many are surprised to learn that it is not found anywhere within the Texas Family Code. Instead, “primary custody” has become a legal shorthand among attorneys and judges as a means of referring to the exclusive right of one parent to designate primary residence of a child. But what exactly does this mean?
Conservatorship vs. Possession
Under the Family Code, child custody is broken into two separate concepts: “conservatorship” and “possession.” Conservatorship describes a parent's right to make important decisions on a child's behalf, while possession refers to a parent's responsibility to act as a primary physical custodian of the child. Depending on the circumstances, these powers can be granted to parents either jointly or separately.
As far as conservatorship is concerned, the Texas Family Code instructs judges to presume that it is in a child's best interests to have both parents be named “joint managing conservators,” granting each parent a relatively equal set of decision making rights. What the Family Code also says, however, is that the judge should give one parent the right to decide the child's primary residence. This power is what lawyers refer to as “primary custody.” Whichever parent is not granted this power is usually given possession of the child under the “Standard Possession Order.”
Many parents believe that if they do not achieve the right to determine the child's primary residence that they will rarely see their children. Fortunately, this is not true. Under the Standard Possession Order, the non-primary parent is given a starting point of having custody on the first, third, and fifth weekend of every month, as well as equal holiday time and 30 days during summertime.
What Factors Determine Primary Custody?
While parents are given the ability to determine their own custody arrangements through out-of-court negotiations and mediation, in the event that an arrangement cannot be reached, the courts may issue a decision on their behalf. The judge's decision will be based on the best interests of the child.
Factors that will be considered include:
- The child's age and preferences
- The relationship between the child and parents
- The relationship between the parents
- The child's developmental, emotional, and health needs
- Each parent's financial situation
- The living situations of each parent
- The parents' health
- Any history of abuse or neglect
While the court's decision will carry the enforceability of law, it is by no means permanent. In the event that a substantial change in circumstances should present itself after the custody arrangement is established, either parent may petition with the courts for a modification.
Custody Attorney in Cleburne, Texas
If you are currently involved in a custody dispute or are approaching a divorce, a Cleburne child custody lawyer from The Law Office of Robert E. Luttrell III can help. With more than 15 years of dedicated legal experience, we can provide the knowledgeable and steadfast support you need to ensure your rights as a parent are protected.