|
There are many misconceptions about Texas divorce laws. These are three of the questions I am asked most frequently:
1. At what age can children refuse to visit the other parent?
Children can choose not to visit the other parent at age 18 (Texas Family Code §157.004). Children can tell the Court in a non-jury trial at age 12 which parent they want to primarily live with. If a parent’s lawyer, the amicus attorney, or the attorney ad litem ask the Court to interview a child aged 12 or older, the Court “shall” interview the child in chambers and “may” interview a child under age 12.
The Court may allow the attorneys to be present during the interview. If any attorney in the case asks, the interview shall be recorded by the court reporter. The Court is not required to grant the child’s wishes (TFC §153.009). The statute does not say what happens in jury trials under these circumstances.
Otherwise, a parent must have the child ready and able, if not willing, to transfer to the other parent as scheduled in the Court’s order. If not, that parent risks receiving a motion for enforcement of the existing visitation order. If the motion for enforcement is granted, the parent may have to pay the attorney fees of the other side, may have to pay a fine, may get a judgment entered against them, and could go to jail. This is true particularly if the Court decides one parent is not encouraging or doing everything possible for the child to visit the other parent (TFC §157.001, 157.167).
2. What does it take to get “Sole Custody” of my children?
Texas has 3 conservatorship or “custody” labels:
- Sole Managing Conservatorship
- Possessory Conservatorship and
- Joint Managing Conservatorship.
The Court will order Joint Managing Conservatorship unless the Court finds that doing so is not in the best interest of the child (TFC §154.131). The kind of evidence necessary for the Court not to order joint managing conservatorship are such things as family violence (TFC §153.131 & 153.004), drug and alcohol abuse, and physical or sexual abuse.
In Joint Managing Conservatorship, either the Court will order, or the parties can agree on whether the parental rights, powers, and duties will be exercised by agreement of the parents, independently by each parent, or exclusively by one parent (TFC §153.071).
The rights of parents are listed in three statutes.
- The first list is rights parents have all the time, regardless of whether the child is with them.
- The second list is the rights and duties a parent has when the child is with them.
- The third list includes 10 rights, the most disputed of which are: which parent pays child support; which parent establishes the child’s residence; and which parent makes surgery, psychological, and education decisions.
Whether the rights or duties are exercised by one parent, by agreement, or independently can vary from one right to the next.
Read on for FAQ No. 3: Can you get my ex-spouse to pay my attorney's fees?
|
