So-called “full custody” represents a red-hot topic for many parents facing divorce. Family lawyers hear certain statements regularly from potential clients. One such statement we hear too frequently goes like this. “She says if I don’t give her the divorce she wants she will take full custody of the kids, and I’ll never see them.” Tragically, this statement stinks of toxic parenting, but what can be done?
What is “Full Custody”?
Many parents seem to misunderstand “full custody”. They seem to believe a parent can sever the rights or possession of the other parent just because. Fortunately, the Texas family Code makes it extremely difficult to cut a parent out of the kids’ lives. In fact, the Family Code never mentions the term Full Custody as an option. The Code separates rights and duties from possession and access.
Rest assured it’s not that simple to get “full custody.” First, the Family Code presumes it’s in the child’s best interest for both parents participate in the child’s life. No requirement exists that both parents must participate equally. Still, the code presumes that both parents should exercise regular access to the child. Likewise, both parents owe duties to the children and have rights. For example, both parents will have duties to support the kids and keep them safe. Rights to medical and educational information also flow to both parents.
“Full Custody” exists on TV and in common discussions about family law. Happily, it does not exist in the Family Code. The Code makes it hard to sever a parent’s rights and duties as well as access to the child. Threats of “getting full custody” are hollow. While it is possible to terminate a parent’s relationship to the kids, terminations are rare. Outside of a termination, the court awards both parents tie with the kids as well as rights and duties.
The Reality of Custody
Overcoming the presumption that both parents should participate in the children’s life is difficult. Severing the other parent’s rights isn’t something that one parent can dictate to the court. Two adults being unable to get along as does not create a situation where it is in the best interest of the child to be with only one parent to the exclusion of the other. So when one parent threatens “full custody”, that parent simply does not have that authority.
The code does not require equal parenting rights and possession. Assuming there is no family violence, no regular drug use, no significant incarceration, or other serious factors, the court will allow both parents to have access to the child. Even where one parent is a drug or alcohol user, the courts prefer to give the problem parent supervised visitation with the children. Even incarcerated parents often have rights of visitation with the child. Of course, all access and possession must be in the child’s best interest.
As a side note, Texas does not use the term “custody” in the family law context. Texas uses the term “conservatorship” when discussing rights and duties. Possession and access provisions in the Code deal with, well, possession and access. Because Texas presumes that both parents should be active in the child’s life, the courts prefer to grant “joint managing conservatorship.” This means one parent is the primary joint conservator and the other parent is the possessory joint conservator. The primary joint conservator has day-to-day control and possession of the children. The primary conservator usually makes most significant decisions for the children. Meanwhile, the possessory joint conservator has a visitation schedule defined by the court.
Texas presumes both parents should be engaged in the lives of the children. Threatening to “get full custody” means going against the presumption. Rebutting the presumption isn’t easy. People can be terrible spouses but still be awesome parents, and the court knows it. Parents who are good for the children who want to be engaged in the kids’ lives will get the chance. Having parental rights terminated by the court requires some serious bad acts by a parent. But the courts don’t sever relationships between parents and children outside of extreme circumstances. And they never do it just because one parent says so.
However, it is entirely possible to get a less desirable possession schedule during custody proceedings. Likewise, losing the right to make significant decisions for the kids is a danger in hearings. Parents should never go to a custody hearing unprepared to show how beneficial they are for the kids. A history of solid and safe decisions regarding the kids helps. Historical evidence of active engagement with the kids helps too. A competent family lawyer will help show the court the parenting history. Conversely, a competent family lawyer for the other parent will highlight that parent’s good deeds and minimize your history with the kids.
We always recommend going to court with your own lawyer to advocate for you. Certainly, if the other parent is talking about getting full custody, you need a lawyer. Failing to employ a lawyer to fight for your parenting rights puts your relationship with the kids in jeopardy. While “full custody” isn’t an option for the most part, there are other undesirable options that can be ordered by the court. A competent lawyer will help prevent those undesirable options.
Youngblood Law, PLLC is a Fort Worth, Texas law firm dedicated to family law. We help good people who are trapped in bad relationships find the freedom to pursue their new happily ever after. We also proudly offer the collaborative divorce process for our clients. This essay is intended for educational use only and is not a replacement for competent legal counsel. If you are facing a family law matter, we recommend obtaining competent legal counsel like Youngblood Law, PLLC. For more information, contact us at 817-601-5345, find us on the web at www.youngblood-law.com.