Sole custody is a term of art that is not legally defined in Texas. The Texas Family Code uses the terms sole managing conservator1, joint managing conservator, and possessory conservator when referring to what is commonly known as custody.
Sole custody can have different meanings for parents. Often the reason behind why a parent desires sole custody is not something that is addressed by simply being named as your child’s sole managing conservator.
Some of these different meanings include:
If you are a parent who desires sole custody, you need a Southlake sole custody lawyer who will fight for protecting your child and is able to navigate through the complexities of a child custody case to accomplish what it is you mean when seeking sole custody. On the other hand, if you are up against a parent desiring to limit your involvement in your child’s life, you will need an experienced child custody litigator who can protect your rights as a parent. Our attorneys will work with you to develop a customized strategy in your case to protect your child and your rights as a parent.
There are numerous circumstances where a court can choose to deny, restrict, or limit a parent’s possession. These circumstances include family violence, child abuse or neglect, substance abuse, and mental health concerns.
If there is a history or pattern of family violence in the two years prior to your child custody case or during your child custody case, the court may not allow the offending parent to have access to the child unless certain findings are made. The court can allow access if the court finds that doing so is in the child’s best interest and will not endanger the child’s physical health or emotional welfare. However, in allowing access the court will need to put safeguards in place to protect the child and any victim of family violence, such as requiring supervised possession and possession exchanges in a protective setting.
When there is a history or pattern of past or present child neglect, abuse, or family violence by a parent or even by a non-parent who resides in the household and is permitted unsupervised access to the child (such as a step-parent or relative), then it is presumed that unsupervised possession is not in the best interest of the child. If a parent’s drug use, alcohol use, or issues with mental health have caused a history or pattern of child neglect or abuse then a court can require supervised access.
With supervised access this can be accomplished in a few ways. Some counties operate facilities or parenting centers that have supervision programs. There are also private entities that provide supervised possession services, some of which employ former or off-duty law enforcement officers. These programs often cost and can become expensive. When a parent cannot afford to pay for supervision costs, there can be the option of having a designated individual supervise the parent’s possession, such as a grandparent or trusted friend. A parent supervising another parent’s possession is also an option, but this is unlikely to be used when the basis for supervision is family violence.
What happens when a parent has a new problem with substance abuse arises and there is yet to be a history or pattern of child neglect or abuse? The court can still require that possession be supervised or place other restrictions a parent’s right to possession. However, these restrictions or limitations cannot exceed those that a required to protect the best interest of the child.
When it comes to alcohol concerns, one alternative is alcohol monitoring devices. There are providers that offer portable breathalyzers that can be scheduled to require testing at random times during a parent’s possession periods and these results can be provided in real time to the other parent, their attorney, and even the court. This is a method that can protect children by ensuring that a parent with alcohol-related problems is not drinking around the children. With substance abuse concerns (including the abuse of legal substances), there can be alternatives with frequent drug testing to ensure that a parent is abstaining from use.
Texas has a presumption that both parents will be appointed as joint managing conservators to share in the rights and duties of raising their child after their separation or divorce. Circumstances leading to a court not following this presumption and instead naming one parent the child’s sole managing conservator with the other parent a possession conservator include: family violence, child abuse or neglect, the threat of international child abduction, or a great distance between residences of the primary parent and non-primary parent.
Without further provisions from the court restricting parental decision-making or placing conditions on the non-primary parent’s possession, being named as your child’s sole managing conservator will only provide you with certain exclusive rights including:
If one parent desires that the other parent have no rights or involvement in their child’s life, then termination of parental rights is likely what is needed to accomplish this. Additionally, if a parent desires to have a step-parent adopt children then they will generally need to terminate the other parent’s parental rights.
For terminating a parent’s rights, bad parenting or limited and infrequent involvement by itself is generally insufficient. There is a high burden placed on a parent seeking to terminate the other parent’s rights, and this can often be difficult to meet. Termination is only available under certain circumstances.
These circumstances include:
Even if a parent establishes one of the grounds for termination with clear and convincing evidence, this still may not be enough. It is still up to the court to determine that termination of the parent-child relationship is in your child’s best interest.
If you find yourself going through a custody battle and you want to know what your options are, you might want to consider hiring a sole custody lawyer near your location.
The child custody attorneys at Mims Ballew Hollingsworth are experienced in presenting and defending sole custody cases. Contact us today and schedule a consultation.