Divorce Attorney Explains Texas Child Custody Laws

This video features Jillian French, a Family Law attorney based in Texas.

Consult an Austin Divorce Lawyer for Legal Advice About Child Custody

Video Transcript:

Jillian French:
Who has had the responsibility for things like getting the children up, feeding them breakfast, taking them to and from daycare or school. Who does the shopping for the children, who does the laundry? Who does the cooking? Think about all of these things.

Leslie Rhode:
Hello and welcome to another edition of AskTheLawyers™. I'm Leslie Rhode, and I'm so glad you're watching today. Our topic today is family law, specifically child custody issues. We have questions about this, so we're thankful that Austin lawyer Jillian French is here with us to answer some of these questions. She's with the Vaught law firm in Austin, Texas. Welcome, Jillian.

Jillian French:
Thank you. Nice to be here, Leslie.

Leslie Rhode:
I wanna start with a brief overview of how child custody actually works here in Texas. I know a lot of people think 50-50, if you wanna have a 50-50 custody, but I know that doesn’t always work out.

Jillian French:
Yes. So in Texas, we don't have anything in our Texas family code that specifically provides for a 50-50 possession schedule. That doesn't mean that 50-50 can't happen. Obviously, the easiest way to make that happen is to make an agreement with your spouse, but you can also present facts to the court that support a 50-50 possession schedule; such as, this is what we've already been doing since we were separated, or my child is over the age of 12, and this is their preferred schedule, something along those lines. And there's a number of other factors that can be considered in order to request the court to grant a 50-50 possession schedule.

Leslie Rhode:
So when we hear 50-50 or we hear prices like joint custody, is there a difference between that joint custody where you have an equal say in decisions, like each parent would have an equal say, and then that actual 50-50 of physical possession or having the child with you for that amount of time.

Jillian French:
Yes, there is. I get questions all the time about custody, and in Texas, it's important to note that we don't really have the term custody, what we have is conservatorship, and possession and access. And those are two different things.
Conservatorship is the part of the law that states the rights and duties of each parent. So for example, if you're a joint managing conservator, you could have the equal rights and decision-making, but your possession and access schedule may or may not be a 50-50 schedule.
So just because someone is a joint managing conservator does not automatically mean that that is going to be a 50-50 possession schedule.

Leslie Rhode:
Can parents really share time equally as you go through these processes. How does that work?

Jillian French:
They can. A lot of people think that you have to be a really involved co-parent, which is obviously the best way to make that happen. There's also some theories that exist called “parallel parenting”, and what that is, is that you're parenting alongside the other person without having as much contact, but still doing what's best for your children. So there's two different theories on how that can work, either through actual cooperative co-parenting which is always what's recommended, or through what's called parallel parenting. In these situations, the most important thing to remember is that your child is still a child and shouldn't be put in the middle, but that you guys need to still communicate about things like homework and did they take their medication, or did they get grounded for something in one home then that should be carried over in the next home.

Leslie Rhode:
I know those are really difficult decisions and things to go through for parents. I wonder about this because I have friends who have gone through this, and there are decisions to be made about where each parent lives; they try to live really close to each other so that the children can go back and forth easily and have a more flexible schedule some time, but is that stability really needed for kids more? Do you get into that with your clients? Is it healthy to have the kids moving back and forth so often between parents' homes?

Jillian French:
Depending on the 50-50 possession schedule, the exchanges may actually occur less frequently than under a regular standard possession or expanded standard possession schedule. For example, if you have a 50-50 possession schedule that is week on week off, you're having one exchange each week between the parents’ homes.

If you can make that exchange on a weekend, then it's much easier to transfer the children's belongings, clothing, extracurricular activity, items, sports equipment, things like that. The proximity and the residence is, is what we refer to as a geographic restriction.
In almost every case, there will be a geographic restriction even without a 50-50 schedule, because the court finds that it's in the best interest of the children, to maintain a relationship with both parents and have access to both parents. In a 50-50 schedule, particularly in an area where traffic is a known issue, you may want to tighten that geographic restriction to say a school district or within a certain number of miles of a fixed location, or something like that to make it easier for both parents to get the kids to and from school, their activities, doctors’ offices, things like that.

Leslie Rhode:
Many issues to consider, for sure. I'm glad you can kind of help people sort that out as they go through this complicated time. What advice, Jillian, do you give parents considering divorce or maybe possibly even starting the process of going through one, but they're really concerned about the ability to see their children on a regular basis?

Jillian French:
The advice I give, of course, is number one, go talk to a lawyer; a family law attorney that practices family law frequently and is knowledgeable about that area of law.

Secondly, is to start gathering your information. A lot of times people will come in and they've already gathered and organized text messages and emails, but it's also important to figure out what have we been doing so far? Who has had the responsibility for things like getting the children up, feeding them breakfast, taking them to and from daycare or school. Who does the shopping for the children? Who does the laundry? Who does the cooking?

Think about all of these things. Make a list of who's doing what. Make a calendar of who's home with the kids. Things like that will really help your attorney in a consultation be able to tell you your likelihood of success should you go forward asking for a 50-50 schedule, or any other kind of unique or customized requests that you may have.

Leslie Rhode:
It's easy to tell Jillian that you are, for sure, specialized in this area with your ability to answer all these questions and help us sort out the content. Is there any other item that you want to leave our viewers with on this topic of child custody today?

Jillian French:
The number one thing that I want to leave with the viewers is that again, start out with talking to an attorney. When people go to court or they go to a hearing on their own without an attorney, and then they come in and ask us to help them fix it, sometimes we can't help them fix it.

When there's an order that's been made, it's very, very difficult to go in and then change that order. So start out with the correct information by having your case looked at by someone who can tell you what you need to do, if maybe you need to wait to file until you can get some evidence together or some tasks completed, something along those lines. That's really gonna help you build your case, and give you a strategy to move forward with.

Leslie Rhode:
Jillian, thank you so much for answering all these questions.

Jillian French:
No problem. Thank you for having me.

Leslie Rhode:
That's attorney Jillian French with Vaught Law Firm in Austin, Texas.

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