Child custody in McAllen, Texas
This is a brief summary of child custody law for parents in the McAllen, Pharr, Edinburg, Mission, Texas area.
Introduction to Child CustodyCustody cases are difficult. In McAllen, Texas during a divorce, neither parent has an automatic superior right to designate the primary residence of the children. Until a hearing can be held each parent has an equal right to be with the children. However, parents should refrain from disrupting the children’s routine. A temporary restraining order (TRO) will usually issued by the court when a divorce petition is filed. This restraining order will prevent both parents from removing the children from school or hiding them from the other parent. A temporary restraining order does not typically award a parent child custody. However, if there are allegations of abuse or neglect, a court can make orders as needed for the protection of the child. For most parents the temporary orders hearing will be their first introduction to the judge. At the hearing, the judge will hear testimony and look at evidence. Based on the testimony and evidence, the judge will determine where the children will live on a temporary basis until the case is resolved.
n McAllen, Texas, custody is referred to as conservatorship. Conservatorship describes a parent’s legal rights, duties, and their responsibilities regarding the children. The legal presumption in Texas is that the parents should be named Joint Managing Conservators (JMC). This presumption says that the rights and duties of parents are to be shared.
What are the Parental Rights as a Joint Managing Conservator in McAllen, Texas?Chapter 153 of the Texas Family Code details the rights of parents and how they are to be shared. The most commonly litigated rights are:
· To determine where the children live;
· To make invasive medical decisions;
· To make psychological and psychiatric decisions;
· To make educational decisions; and
· To receive child support
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The rights mentioned above can be:
· joint (parents must agree prior to making decisions);
· independent (each parent can make decisions on their own); or
· exclusive (one parent has the sole right to decision making)
How the rights are allocated in an McAllen child custody case depends on how the parties co-parent. For instance, one spouse may want the exclusive right to medical decisions because they were the primary decision maker prior to filing for divorce. Parents may want to have joint rights so that each party is involved in the decision making process. Even when rights are shared, one parent will usually have the exclusive right to designate the residence of the children, decide what school they are enrolled in and receive child support. This is commonly referred to as the “primary parent”.
Visitation is referred to as possession and access in McAllen, Texas. Parents may establish customized periods of possession of the children that fits their needs and those of the children. In fact, courts encourage parent to arrange periods of possession by agreement as much as possible. It is always advisable to remain flexible to adjust to circumstances. However, the final decree of divorce or final custody order must include a visitation schedule that will control if the parties cannot agree in the future. Agreeing on a visitation schedule is recommended if possible.
If parents cannot agree on a custom visitation schedule the judge must order one. This is typically is the “Standard Possession Order“. If the parties live within 100 miles of each other, this standard schedule allows for possession by the parent with whom the children do not primarily reside on the 1st, 3rd, and 5th weekends of each month from 6:00 p.m. (or the time school lets out) on Friday until 6:00 p.m. on the following Sunday (or when school resumes the following Monday); one weeknight each week from 6:00 p.m. to 8:00 p.m. (or from the time school lets out until the time school resumes on the following day).; alternating Thanksgiving and Spring Break holidays; one week at Christmas; and thirty days during the summer break. If this parent lives farther than 100 miles away, the weekend and weekday periods may be modified or omitted and he or she will have visitation every Spring Break and for six weeks of the summer break.
Often times one parent believes that the other parents access to the children should be restricted. This may be because the children are very young or because one parent doesn’t trust the other parent take proper care of the children. Although the law presumes that the Standard Possession Order is in the children’s best interest, a court can restrict a parent’s access to the children if the need arises.