Are you the father of a child in Texas and Mom is refusing to let you see or communicate with your child? Are you paying child support in Texas for your child, yet Mom tries to dominate all interaction between you and the child to suit her needs. Is this Parental Alienation in the present or a step commencing down that path?
Fathers have rights in Texas and because this is one of the more frequent calls we receive from Dads, I thought it was time to discuss some specific law from the Texas Family Code regarding the rights and duties afforded to a Parent, whether Mom or Dad!
Under the Texas Family Code a “Parent” is defined as the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who acknowledged his paternity under applicable law or an adoptive mother or father.
Tex. Fam. Code Sec. 160, otherwise known as the Uniform Parentage Act, states that a man is presumed to be the father of a child if:
1. he is married to the mother of the child and the child is born during the marriage;
2. he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
3. he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
4. he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:
a)the assertion is in a record filed with the bureau of vital statistics;
b) he is voluntarily named as the child’s father; or
c) he promised in a record to support the child as his own; or
5. during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.
If the above applies to you and you have established legal standing to support that you are “the father,” what are your rights and duties as the Texas Family Code Sec. 151.001 states:
§ 151.001. Rights and Duties of Parent
(a) A parent of a child has the following rights and duties:
(1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;
(2) the duty of care, control, protection, and reasonable discipline of the child;
(3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
(4) the duty, except when a guardian of the child’s estate has been appointed, to manage the estate of the child, including the right as an agent of the child to act in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government;
(5) except as provided by Section 264.0111, the right to the services and earnings of the child;
(6) the right to consent to the child’s marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;
(7) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(8) the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;
(9) the right to inherit from and through the child;
(10) the right to make decisions concerning the child’s education; and
(11) any other right or duty existing between a parent and child by virtue of law.
Both parents have these rights unless a court order has created, modified, ordered, or delegated the statuary rights of a parent. The rights you have will support and empower you in a hands on relationship with your child.
All parents have the right to have a relationship with their children! One misguided parent may attempt to employ parental alienation to hurt the other parent and cause the child to be denied a loving relationship with the other parent. Know your rights and contact an attorney who can help you and your child fulfill a meaningful relationship!
Many professions create impositions on conservators making a standard possession order inapplicable and unworkable. The Court may deviate from a standard possession order if the order is inappropriate or unworkable in reference to the schedules of both the conservators and the child. Unique professions and irregular school schedules for children allow the Court to have flexibility to deviate from a standard possession order that is in the Best Interest of the Child. There are multiple ways in which the Court may depart from a standard possession order to fulfill the needs of all parties involved with the custody of the child.
First, the Family Code § 153.254 states that the Court will be allowed deference to modify the standard possession order if work schedules of either conservators or the school schedule of the child is irregular. The Court must attempt to narrowly tailor the modifications to keep the new possession order as similar to the standard possession order as possible. This instance most commonly occurs when the Managing Conservator and the Possessory Conservator cannot reach an agreement and one of the two Conservators has a unique profession such as a firefighter, police officer, or airline pilot. The working hours of these jobs allow the Court to modify the standard possession order even if both of the parties do not comply with the changes. The modifications must be made only if it is in the Best Interest of the Child.
Secondly, the standard possession order may always be modified if it is by the mutual agreement of both the Managing Conservator and Possessory Conservator. Family Code § 153.007 is the Agreed Parenting Plan Statute and allows for both parties to agree on a standard possession order for the child. This statute was passed to promote amicability in settlement for child custody issues and to give flexibility to the parents if they are willing to agree on custody terms. The Agreed Parenting Plan must be in the Best Interest of the Child for the Court to approve. If the Court grants the Agreed Parenting Plan then the Managing or Possessory Conservator will have a remedy as a matter of law for any violation of the agreement committed by either party.
Finally, both Conservators may enter into a Mediated Settlement Agreement under Family Code § 153.0071. A Mediated Settlement Agreement is the only time in which the Court will NOT look at the Best Interest of the Child when granting the custody agreement.
The Mediated Settlement Agreement § 153.0071 must be:
- In bold, underlined, and capital letters that the agreement is NOT REVOCABLE
- Signed by Both Parties to the agreement
- Signed by the lawyers (if represented) of each party
The Mediated Settlement Agreement is binding and not revocable so if the Conservators wish to go this route they must understand that what is in the agreement will be held as binding. This method can be used to modify or change a standard possession order and the Court will not look at the Best Interest of the Child regarding the agreement, unless there exists a credible threat of domestic violence.
These are the methods in which a unique possession order may be obtained to accommodate irregular schedules or working hours of both the conservators. Any possession order must be correctly drafted and all future contingencies must be accounted for. An experienced lawyer must be contacted to safeguard an individual’s custody rights of their children and to make sure that a fair custody arrangement is obtained.
Texas family law states that a court may modify a child custody order if the change is in the best interest of the child and one of the following applies:
1. The circumstances of the child or parent have materially or substantially changed since the date of the original child custody order or order to be modified.
2. The child is at least 12 years of age and will tell the court in private chambers with the judge that he/she would like a change.
3. The custodial parent has voluntarily given the child’s care and custody to another person for at least 6 months.
Material or Substantial Change
What could be acceptable as a change for the Texas family courts? Some examples could be a parent’s remarriage, a medical condition the affects a parent’s ability take care of the child, a parent’s criminal acts or convictions, a parent’s change in residence that makes visitation a hardship for the other parent, family violence, drug or alcohol related issues, absence of supervision, and other material changes concerning adequate care and supervision of the child.
Child Wants Change
The child must be at least 12years of age and maybe interviewed in the judge’s chambers. The court will consider the child’s desire but only make a change if it is in the child’s best interest.
This happens when the custodial parent has voluntarily given up custody of the child to another person for at least six months. This does not apply to a period of military deployment or duty.
After finding one of the three prerequisites, the court must still consider whether the change will be in the child’s best interest. The court will consider factors affecting the child’s physical, emotional, mental, education, social, moral or disciplinary welfare and development. The factors considered for this evaluation are:
1. Child’s emotional and physical needs.
2. Parenting ability of the conservators or potential conservators
3. Plans and outside resources available to persons seeking the modification
4. Value to the child of having a relationship with both parents
5. Visitation schedule that requires excessive traveling or prevents the child from engaging in school or social activities
6. Stability of the person’s home seeking the modification
7. The child’s desires
8. Child’s need for stability and need to limit additional litigation in child custody cases.
Modification within one year of prior court order
A parent who files a motion to modify a child custody order within one year after a prior order was entered must also submit an affidavit to the court. The affidavit must contain, along with supporting facts, at least one of the following allegations:
1. The child’s present environment may be endanger the child’s physical health or significantly impair the child’s emotional development.
2. The person who has the exclusive right to designate the child’s primacy residence is the person seeking or consenting to the modification and the modification is in the child’s best interest.
3. The person who has the exclusive right to designate the child’s primary residence has voluntarily relinquished the primacy care and possession of the child for at least six months and the modification is in the child’