Most people facing separation or divorce comprehend that dealing with custody issues may be an expensive process. However, agreeing on a custody and visitation arrangement does not have to be a complicated and expensive process for the parents.
In Texas, what is referred to as custody in most states is referred to as “conservatorship.” However, the standard that Texas courts apply to making decisions about child custody arrangements is the same; it is the best interests of the child standard.
If a court applies Texas child custody law, or conservatorship law, they consider the following factors:
- The age and health of the child
- The age and health of each parent
- Any special needs that a child or parent may have
- The stability of the home that each parent has to offer
- Any criminal record or history of abuse
- The child’s emotional and physical needs
- The existing relationship the child has with each parent and their siblings
- Any factor, such as domestic violence, that could place the child at risk of suffering physical or emotional harm
- The child’s educational requirements
- The amount of time each parent would be able to devote to the child
- Any other factors that the court considers important to the decision.
If the child is old enough and of sufficient maturity, a Texas court may consider their preference for a conservatorship and visitation arrangement.
A legal consultation in Texas with a Texas lawyer would help a Texas parent understand Texas custody law and how to get to a child custody agreement without court involvement or at least without a trial.
In fact, if both parents can agree on a conservatorship and visitation arrangement that works for them and their child, then clearly their costs would be greatly reduced. One of the main costs of obtaining a custody agreement without a trial are the fees that must be paid to hire an attorney to represent a parent.
In light of this, more separating parents make an effort to come to an agreement about conservatorship and visitation outside of a court proceeding.
Before discussing how parents can establish a conservatorship and visitation arrangement for their child or children, they may want to review the types of custody and visitation that are available to them.
In Texas, as in many other states, there are 2 aspects to child custody. Texas refers to physical custody as “possession” and visitation as “access.” The parent with whom the child lives most of the time has “possession.” The parent who visits the child to maintain their relationship with them has “access.”
Texas recognizes 2 kinds of possession, or “custody,” in most other states, standard and extended. In standard possession, the child lives primarily with one parent and the other has “access” to the child on some weekends, holidays, and throughout the summer. Extended possession is another option that gives the parent who has access more flexibility. They might spend long weekends with the child and more extended periods of time in the summer.
Access gives a parent the ability to have phone and video calls with the child. Parents with access also have the right to receive information about their child’s health, medical care and education, and to attend extracurricular activities.
Usually, the non-custodial parent of the child has access, but other family members and even people close to the child, can have access also. This would allow grandparents access. Grandparent custody might be possible in certain cases in which both parents are not fit to have it.
Still other terms that parents may encounter are “joint managing conservatorship.” In this arrangement, the parents share decision-making about the child’s upbringing. In “sole managing conservatorship,” one parent alone makes all major decisions. “Possessory conservatorship” refers to a plan that outlines the visitation arrangements for the non-custodial parent.
Texas recognizes joint and sole custody, or, again, “conservatorship.” Sole conservatorship means the child lives primarily with one parent, and that parent also has the sole right to make decisions for the child. The non-custodial parent would have access. In this parenting plan, both parents would agree on an access schedule for the non-custodial parent that works for the parents and the child.
Joint custody, or conservatorship, is an arrangement in which both parents are granted custody and spend time with the child. If the parents cannot agree on how much time each gets with their child, a judge would create a schedule that is in the child’s best interests. Texas courts always try to award each parent at least some custody and visitation time with the child, as this is believed to be in the child’s best interests.
In Texas, What Are Some Ways To Arrange a Child Custody Arrangement Outside of Court?
The parents may always make use of alternative dispute resolution processes to resolve custody and visitation issues. They may have a pre-nuptial agreement that requires them to use an alternative dispute resolution process, such as arbitration, for this purpose.
But even if they do not have a pre-nuptial agreement that requires it, parents can agree to engage in alternative dispute resolution. The available methods are arbitration, mediation and negotiation.
Legal problems are often resolved when the lawyers for the parties to a lawsuit or a dispute informally negotiate an arrangement that works for both parents. A parent can easily tell their
Is Mediation an Option for Arranging Child Custody Outside of Court in Texas?
Mediation is an excellent option for arranging child custody and visitation outside of court in Texas. In Texas, mediation is required in divorce and separation cases. It encourages couples to settle the issues involved in their case peacefully and reduces the caseload of the courts. In some cases, e.g., those involving domestic violence, the parties may be able to avoid mediation.
In mediation, a neutral third party works with the parties to discuss the issues they need to resolve and try to come to an agreement that works for them. The mediator does not impose a parenting plan on the parties or a resolution of any other issues. It is up to the parties to agree to a settlement if they are able.
The mediator works with the parties to enable them to arrive at a solution that works for them. The parties do not have to agree in the end, but if they do, their agreement is formalized in a mediation settlement agreement (MSA) and then a court order. The court order is then binding and enforceable by a court.
A mediation might be conducted in person, at the office of one of the spouse’s lawyers, or in an office space that the mediator provides. Some courts order that mediation take place in conference rooms at a courthouse. Mediation can also be done via Zoom or another virtual platform that all parties can access through their telephones or computers.
Mediation sessions are confidential. Still, all lawyers involved in a mediation, whether acting as a lawyer or a mediator, are legally mandated to report suspected physical or mental abuse or neglect of a child, an elderly person, or a disabled individual to the appropriate authorities.
Per Texas law, once the parties and the mediator have signed an MSA, it cannot be revoked, but is incorporated into the final judgement in the case. This is true even if one side or the other wants to change their mind or claim they made a mistake when the agreement was signed.
The language in an MSA has to be drafted, reviewed, and signed by the parties and the judge. If the parties cannot agree on the language in the final court order, the MSA is not changed or revoked. Rather, a judge then decides how the terms of the MSA should be expressed in the final court order.
An MSA can be partial. It may resolve some issues that the parties have but not all of them. For example, parties might agree on the division of marital property and debt and spousal support but not agree about child custody.
A partial MSA allows the issues that have been resolved to be finalized, while a court would finalize the others after a trial. Or, possibly, future negotiations or additional mediation sessions might lead to resolution of the remaining issues.
In Texas, Is Arbitration an Option for Arranging Child Custody Outside of Court?
Texas courts require mediation in most cases, but there are other options for alternative dispute resolution. Couples with issues other than custody, e.g., exceptional wealth or major disagreements, may find these other options more helpful.
One option is “collaborative divorce.” In collaborative divorce, separating spouses agree to work out their issues privately. They may meet and negotiate until they arrive at a settlement. Or, their lawyers may negotiate about the issues over time until they have all been resolved.
Arbitration is another form of alternative dispute resolution. In arbitration, a neutral arbitrator listens to evidence and arguments from both sides. The arbitrator then makes a decision about the issues that is binding on the parties. Arbitration is somewhat more formal than mediation but may still be a quicker and less expensive way to resolution than a trial would be.
With traditional litigation, a judge considers evidence and arguments and makes decisions about any disputes. A trial can be expensive and time-consuming, in part because the parties may have to wait for months for a trail to take place. However, it is the only option when in some situations when separating spouses refuse to cooperate, behave dishonestly, or face very complex legal issues.
Do I Need an Attorney for Help With Texas Child Custody Matters?
If you have a child custody case or other issues in a divorce or separation, you want to consult a Texas child custody lawyer. Your lawyer can review all the facts of your situation and help you determine whether some method of alternative dispute resolution is possible in your case and would offer you the speediest and least costly way to the results you need.
