As a joint managing conservator of a child in a divorce proceeding in Texas, unless special circumstances arise justifying a variance from the Guidelines, the Court will normally order guideline code rights and duties and a parent will be awarded the following:

1.the right to receive information from any other conservator of the child concerning the health, education, and welfare of the child.

2.the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child.

3.the right of access to medical, dental, psychological, and educational records of the child.

4.the right to consult with a physician, dentist, or psychologist of the child.

5.the right to consult with school officials concerning the child’s welfare and educational status, including school activities.

6.the right to attend school activities.

7.the right to be designated on the child’s records as a person to be notified in case of an emergency.

8.the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.

9.the right to manage the estate of the child to the extent the estate has been created by the parent/conservator or the parent/conservator’s family.

10.the duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child; and

11.the duty to inform the other conservator of the child if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter.  IT IS ORDERED that this information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the child begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate.  IT IS ORDERED that the notice must include a description of the offense that is the basis of the person’s requirement to register as a sex offender or of the offense with which the person is charged.  WARNING:  A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE.

12.the duty of care, control, protection, and reasonable discipline of the child.

13.the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure.

14.the right to consent for the child to medical and dental care not involving an invasive procedure.

15.the right to direct the moral and religious training of the child.

16.Only one parent shall have the exclusive right to designate the primary residence of child in a specific geographical area, which is commonly the county in which the child currently resides and the contiguous counties thereto.

17.the right to consent to medical, dental, and surgical treatment involving invasive procedures may be subject to agreement, an independent right or an exclusive right;

18.the right to consent to psychiatric and psychological treatment of the child may be subject to agreement, an independent right or an exclusive right;

19.Only one parent shall have the exclusive right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;

20.the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child may be subject to agreement, an independent right or an exclusive right;

21.the right to consent to marriage and to enlistment in the armed forces of the United States may be subject to agreement, an independent right or an exclusive right;

22.the right to make decisions concerning the child’s education may be subject to agreement, an independent right a joint right or an exclusive right;

23.except as provided by section 264.0111 of the Texas Family Code, the right to the services and earnings of the child may be subject to agreement, an independent right or an exclusive right;

24.except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government may be subject to agreement, an independent right or an exclusive right; and

25.the right to manage the estate of the child to the extent the estate has been created by community property or the joint property of the parent/conservator may be subject to agreement, an independent right or an exclusive right.

In accordance with section 153.001 of the Texas Family Code, it is the public policy of Texas to 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, to provide a safe, stable, and nonviolent environment for the child, and to encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.  The Court will therefore normally establish the primary residence of the child in the county where the child currently resides and/or a contiguous county thereto, and the parties shall not remove the child from such county for the purpose of changing the primary residence of child until there is a modification to the existing order of the court of continuing jurisdiction or a written agreement signed by the parties and filed with the court.

The geographical restriction on the residence of the child may be lifted or modified if, at the time the primary parent with the right to establish residence wishes to remove the child from the county for the purpose of changing the primary residence of the child, the other parent does not reside in that county or a contiguous county thereto.

Time constraints, employment issues of the primary Joint Managing Conservator, and other material factors may come into play when a Joint Managing Conservator requests waiver of the geographical restrictions.  It customarily is a very difficult, but not always insurmountable, burden to achieve a geographical restriction waiver.  The success, consistency and regularity of the non-primary conservator’s possession and access to the child is a factor the court will view in making a ruling.  Frequently, an agreement to adjust the amount of support and/or transportation costs comes into play in resolving such disputes.

Supervised visitation takes place between the non-custodial parent and his or her child(ren) in the presence of a third party who observes the visit to ensure the child’s physical and emotional safety.  Though sometimes reasonably and successfully ordered, visits voluntarily supervised by friends and family in their homes can be fraught with danger for the child and parent, as well as the monitor, especially in cases of domestic violence.  Family members may trust the parent whose visits are being supervised and therefore may not take proper or sufficient measures to assure the child(ren) are watched or monitored at all times during the visit. 

Consequently, when supervision is indicated, possession/visitation supervised by a neutral third party with the capacity to enforce effective safety measures is normally ordered and enforced by the courts.  The expenses of such supervision are often excessive and may in themselves create a detriment to possession by a parent.  Such agencies may also provide reports and recommendations to the court based on the success or failure of the supervised visits.  Such recommendations assist the courts in making informed decisions regarding supervision and whether continued supervision in the best interest of the child(ren).

If supervised visitation is requested, some type of compelling reason and evidence, based on the circumstances surrounding the child(ren) must normally be established.  Such evidence may include denial of access, drug addiction, mental or physical abuse, neglect, or severe mental illness of a parent.  The following is a potential list of acts and/or circumstances that may be considered contrary to a child’s best interest.

• Violence or physical endangerment – A noncustodial parent may be denied visitation rights if the parent has abused the child or threatened physical violence.
• Emotional harm – Where sufficient proof is offered of potential emotional harm or that standard visitation has detrimentally affected a child’s welfare, supervised visitation may be ordered.
• Child’s wishes – A court may consider the child’s wishes as to visitation.  The weight given to a child’s preference is dependent on the child’s age, emotional stability, maturity and motives.
• Abduction – There must be a showing that there is a strong imminent probability of abduction to limit visitation on this basis.
• Substance abuse – A parent who abuses drugs or alcohol may be ordered to supervised visitation restrictions if the conduct endangers the child or if the parent uses abusive language and/or mistreats the child.
• Mental illness –Mental incapacity may be a reason for supervised visitation only if it is determined by the court that there is a reasonable potential for harm to the child due to such mental illness.
• Sexual behavior – Courts rarely deny visitation solely on the basis of a non-marital heterosexual relationship.  Courts will, however, cancel overnight visitation by a child with a parent because of the parent’s cohabitation on a showing of an adverse and material negative impact on the child.
• Incarceration – Visitations due to incarceration may be suspended only on a showing that such visits are detrimental to the child.

To have more of your questions answered on supervised visitation in Texas, or for answers to any other Texas child custody concerns you may have, call  Dallas Divorce attorney Mark Nacol of the Nacol Law Firm P.C.

Both federal and state wiretapping laws apply to divorcing spouses.  A spouse may sue the other spouse or their agents for invasion of privacy.  Federal law regulates electronic surveillance of conversations and access to emails, faxes and voicemail.  The law imposes civil and criminal sanctions for intentional interceptions of electronic communications.  However, accessing email after it has been transmitted, i.e. downloading a text from your telephone or email from the hard drive of a family computer, is not an offense under the Federal Act.  Texas has laws that also prohibit the interception of communications.  Under such laws, counsel may also be held liable if they disclose information received from the intercepted communications provided by their clients.

Federal and Texas laws both allow recording of telephone calls and other electronic communications with the consent of at least one party to the communication.  Under the one-party consent statutes, a spouse may record conversations in which he or she is participating.  This has been extended to include parental recording of a child’s conversations with a third party, including the other parent.  The parent can consent to the recording on behalf of the child so long as the parent has a good faith objective and a reasonable belief that it is in the best interest of the child, even if the child is unaware of the recording.

It is important that a spouse take great care in their means and methods of gathering information.  Information obtained by illegal means can expose one, even if he or she is a spouse, to civil liabilities and possible criminal prosecution.  Texas recognizes that every person has a certain right to privacy.  Such right is violated if a person intentionally intrudes upon the private affairs of another by offensive means.  Accessing stored email or secretly recording a spouse can be a violation of a spouse’s right to privacy.  If a suit is filed, the damaged spouse may recover monetary damages, including punitive damages.

For answers to your questions on gathering information for your Texas Divorce, contact Dallas fathers rights attorney Mark Nacol with the Nacol Law Firm, P.C.