It is Tuesday and I have already gotten three e-mails this week asking about “Full Custody”. The questions are all similar: “Father has not been a part of my child’s life for 2 years, how do I get full custody?”; “We have a joint custody agreement but I want full custody, can I take him back to court?” ‘ and “I want to file for divorce and leave my husband, how do I win full custody of our children?”
The first two questions both involve modifications of the current custody agreements and the third seeks an original court determination. The problem is the phrase “full custody”. I have to explain this so often it amazes me that I have not written on the topic or added a page to my website. This is a shortcoming I plan to fix now starting with advising all readers – there is no such thing as “full custody” in Texas . . . well, at least there is no term by that name in the Texas Family Code.
Many people use the term “full custody” which always lead me to ask
“What do you mean by full custody”? Sometimes I discover that the requesting party has what they want and they are hung up on some wording in the custody papers signed by the judge. For example, the lady that contacted me telling me the father had been absent from the child’s life for nearly two years. She and the father had gone to court, they were appointed “Joint Managing Conservators” and she was named the Conservator with the right to designate the residence of the child and collect and spend child support. Father was ordered to pay child support and given standard visitation which he never exercised. This lady felt she deserved “full custody” based on these facts. Now, I could have taken her money and gone to the courthouse and asked the court to change the orders to appoint her the “Sole managing conservator” but the court would have left the child support and standard visitation alone. She would have paid several thousand dollars to get exactly what she factually has, the only difference bing a single word – “sole” as opposed to “joint”.
The second woman was of a different mindset. She felt the father did not deserve to see the kids because she did not want him in the children’s lives. So her
definition of “Full Custody” means the Court will tell Dad he can never see the kids, never have any contact with the kids and basically terminate his rights but order him to send a check every month. I can only imagine her surprise when I advised that the Courts in Texas will never grant such a thing. For the record, it is likely the same shock and awe that is delivered to the man (this is a common question in the inverse) who ask how to terminate his rights so he does not have to pay child support.
Custody of children is based on what Family Law Attorneys call the “golden rule” – the court must make orders that are designed to protect the child and are shown to be in the child’s best interest. You can read more about “best interest of a child” at : http://www.planoattorney.net/practice-areas/child-custody-attorney/best-interest-of-the-child
The key to the golden rule is put it in context of the first provision in the relevant section of the Texas Family Code – Sec. 153.001 which is titled PUBLIC POLICY and states:
The public policy of this state is to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;(2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. A more complete recitation of Chapter 153 of the Texas Family code is available at: http://www.planoattorney.net/practice-areas/child-custody-attorney/texas-family-code-chapter-153
Put into practice, the result is actually predictable. If and only if one parent can demonstrate to the Judge that the other parent is a danger to the child, the Court will “Restrict” access and visitation or make it supervised, and in this case the majority of the restricted parents never show up so the other parent ends up with de facto “full custody”, but it is merely a result of the other parent’s choice, not a court order. Which brings me back to the first inquiry, wherein even though the father had standard possession orders Mom has in actuality much more than the Judge could give.
So, what is “best interest” of a child? It is ill-defined and to paraphrase Justice Potter Stewart – I shall not today attempt further to define “best interest of a child” or the the factors I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.
The Court is tasked with protecting the child when two parents do not agree. The Judge is left in this situation to determine based on the evidence provided what is in the child’s best interest. Finally, the law presumes it is in the child’s best interest to have a strong continual association and relationship with a parent who has shown the ability and willingness to act upon the child’s needs and best interest. In other words, while it takes a village to raise an idiot, it takes parents to raise a child – note the plural . . . .
Next up – modifications, when it is time to change the status quo.