Sometimes a parent, for whatever reason, will get “full custody” of the kids during a divorce. However, many parents threaten to take “full custody” if they don’t get their way. This threat attempts to weaponize the kids and the possession schedule. Can a parent just seize “full custody”?
Who gets full custody?
Rest assured it’s not that simple to get “full custody.” Certainly, merely demanding full custody rarely convinces the court to order it. First, the Texas Family Code presumes the children benefit from having regular and frequent access to both parents. No requirement that the parents have equal access to the kids exists. Still, the state presumes that both parents should have access to the children
Rebutting the Presumption for Access
Overcoming the presumption that both parents should participate in the child’s life is difficult. A parent doesn’t dictate to the court that that he or she shall have “full custody.” Failure of two parents to act civilized with each other doesn’t convince the court that the children benefit from being with only one parent. The court requires evidence that one parent is harmful to the children before that parent’s access will be curtailed. It takes evidence of harm or endangerment to rebut the presumption that both parents should participate in the kids’ lives. So, when one parent threatens to seek “full custody” as a tactic in divorce negotiation, you know that parent simply does not have the authority to make that decision.
The Reality of “Full Custody”
It is sometimes possible to get “full custody” under certain circumstances. However, 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 in examples where one parent has a drug or alcohol problem, the courts will prefer to give the problem parent supervised visitation with the children rather than to cut the parent off from the kids completely.
When the court sees that a parent is seeking sole custody the first thing that comes up is why the kids should be cut off from the other parent. Certainly, the evidence the court needs to justify awarding full custody needs to be more than “Because I said so.” In fact, the Texas Family Code prefers to place the children with the parent most likely to foster a relationship between the kids and both parents. Consequently, demanding “full custody” in a divorce for the sake of leverage in the negotiations is the opposite of fostering relationships.
Custody vs. Conservatorship
As a side note, Texas does not use the term “custody” in the family law context. When we discuss custody, Texas law refers to it as access and possession. The court doesn’t award “custody”. It makes orders for possession and access to the children. Because Texas presumes that both parents should be active in the child’s life, the courts prefer to grant one parent the primary joint managing conservator with the other parent being the possessory joint managing conservator. The primary joint conservator has day-to-day control and possession of the children and establishes the child’s primary residence, and the possessory joint conservator has visitation and possession as defined by the court’s order. The possession schedule ordered by the court typically follows the Texas Family Code schedule, but other options are available by agreement of the parties like fifty-fifty possession schedules.
A distinct concept is what Texas law calls “conservatorship.” Conservatorship refers to the rights and duties of the parents regarding the children. It is possible to have a possession schedule with the children but not have some of the available decision-making rights to the kids.
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Youngblood Law, PLLC is a Fort Worth, Texas family law firm focusing on helping people get through the divorce process so they can move on to their new Happily Ever After. 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.divorceinnovation.com
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