Getting a divorce in Texas can be messy. As much as we might do our best to argue the reasons why we should get custody of our children, the final outcome may be out of your control.
Fortunately, in Texas, the law states that it’s in the child’s best interest to be raised by both parents, which is called joint managing conservators. If a parent wants to be the sole managing conservator or have primary custody of the child, he or she must prove that having sole legal and physical custody is in the child’s best interest. If both parents cannot come to an agreement about their rights to their children, a judge will need to step in.
If you’re in a dispute for physical and legal custody of your children, you might be wondering what rights a non-custodial parent have if you lose your case. Here’s what you need to know about parental rights in Texas.
Texas Terminology Related to Child Custody
Legal terms in Texas differ from most other states. Instead of the custodial parent (person who has legal rights to make decisions about the child), the term used is “conservator.” The term “visitation” or “custody” may be replaced with the term “access”. Access can be defined as the time that a parent has with their children. Lastly, “physical custody” may be referred to as “possession” in Texas.
Parenting Plans in Texas
In Texas, every child custody court case involves a decision about a parenting plan. The goal of the parenting plan is to ensure that the child has a close and ongoing relationship with each parent. To do so, a parenting coordinator may be assigned to reduce conflict between parents and assist in creating this plan. The parenting plan lays out how certain issues will be addressed, such as child support, possession, and conservatorship.
Courts will allow parents to bring an agreed-upon plan, in which the judge will sign off in a possession order if he or she deems it fair. However, if either parent does not agree, each parent must present their proposed plan and any evidence to support their plan.
What Rights Does a Custodial Parent Have?
A custodial parent or the parent with “conservatorship” has the right to make decisions on a child’s health, education, religion, legal needs, and after-school activities. A custodial parent has physical custody of their child. Thus they are the primary parent with whom their child lives. This can occur from any of the following situations:
- Both parents came to an informal agreement about their custodial rights
- Only one parent in the child’s life
Since a custodial parent in Texas has a lot of say-so in the child’s life, the judge will account for many factors to determine who gets child custody. These factors include:
- Able to provide a stable environment and care for the child
- Can take care of the child’s physical and emotional needs
- The parent’s overall health
- The child’s preferences and age
- Any history of neglect or child abuse
What is a Non-Custodial Parent?
If allowed by the court, a parent may have access to their child. Under Texas law, a non-custodial parent has legal visitation rights but does not have primary custody of the child. When the non-custodial parent is given the right to visitation rights to their child, the custodial parent must oblige and follow court orders. In addition, the non-custodial parent will have the right to know their child’s location.
What are Non-Custodial Parents Rights in Texas?
Under Texas law, the court provides a Standard Possession Order, which determines the legal rights of non-custodial parents. These orders will spell out the non-custodial parent’s rights for the amount of time spent with their children. Unfortunately, the parent may not have the power to make legal decisions for the child. In essence, a non-custodial parent may only have the rights to visit and access their children.
Typically, the schedule will be based on the proximity between the child and non-custodial parent.
If the parents reside within 100 miles of each other, the non-custodial parent is entitled to the visitation schedule below.
- Thursday evenings every week
- Alternating holidays such as Christmas every other year
- Visits every other weekend
- 30 days of visitation during summer break
If the parents live 100 miles apart from each other, the non-custodial parent has the following visitation rights:
- Mid-week visits aren’t allowed
- Visitation every other weekend or one weekend per month
- The parent may still have the alternating holiday schedule
- The non-custodial parent has a longer summer visitation of 42 days and has the right to see their child during spring break
Grandparent Visitation Law in Texas
A grandparent can file to establish visitation rights or add modifications to their existing visitation order. However, the grandparent must provide to the judge that the visitation will be in the child’s best interests. The Texas grandparent statute allows access or child visitation when:
- They can prove that denial of visitation could negatively affect the child’s emotion and physical well-being
- At least one adoptive or biological parent still has rights over the child
- The child’s parent has died, been declared mentally incompetent, or incarcerated in jail for three months or
Responsibilities of a Non-Custodial Parent
It’s imperative that non-custodial parents uphold their responsibilities to their children. Failure to do so may lead to potential legal action taken against you from the custodial parent and a damaged relationship between you and your child.
Child support is a court order that mandates that a parent (typically the non-custodial parent) provide financial support on schedule to their child. Sometimes parents cannot agree on terms, but the court will decide on the amount paid to the custodial parent based on the financial information provided by both parents. If you can’t pay child support, you may consult with the court. The court may grant you access to financial assistance programs such as from Child Support Enforcement. However, it’s best to contact a family law attorney, so they can review the court order and provide substantial evidence to make a modification to the child support amount. The non-custodial plan is mandated to pay child support until they reach 18 years old or graduate from high school. Or the court may have the non-custodial parent pay child support indefinitely if the child is mentally or physically disabled.
Child custody means that the parent has the obligation and right to decide on the child’s upbringing. For example, with legal custody, a parent can make decisions about the child’s medical care, religious upbringing, and schooling for their best interests.
The court will determine the child custody and visitation schedule for the non-custodial parent, and it’s their obligation and right of access to their child. It’s imperative that the parent follows these guidelines and brings the child back to the custodial parent in the terms laid out by the judge.
A family court judge will base their final court order using all of the information given to them. When new evidence is brought up, such as changes in living situation, job, or income, the non-custodial parent may contact a law firm to seek potential adjustments to the order.
Can a Non-Custodial Parent Be Denied of Visitation Rights?
It’s nearly impossible to deny child visitation unless a valid court order is in place. Even if the non-custodial parent is late on child support, they will still be allowed to continue their visitation schedule unless the court ordered otherwise.
The visitation rights of non-custodial parents can only be denied if there is a lot of evidence that suggests that the child may be at risk of being harmed or not in their best interest. Here are ways that you can lose parental and visitation rights:
- Violation of the court orders
- Use of illegal drugs
- Have been hospitalized for a prolonged period
- Pose a threat to your child
- The parent is intoxicated when you visit your child
- Suffers from psychological or debilitating physical conditions
- A history of criminal conduct or family violence that can harm a child
- Any evidence of child abandonment
- Children alienation or related to manipulating the child’s relationship with his or her other parent
In cases where the child’s life may be negatively affected by a particular non-custodial parent’s behavior, visitation may be restricted, denied, or suspended based on court order. The court will determine a child’s best interest and will rule court-ordered visitations if they deem necessary. The Standard Order Possession Order may be revoked when the non-custodial parent is unfit to see their child alone. Factors that determine an unfit parent include severe mental illness, child abuse, and abandonment or neglect.
Under these court-ordered or supervised visitations, a counselor will listen and watch the child, and non-custodial parent interact. The court will state the exact time, location, duration, and who will supervise these visits. Typically, these are held in a closed room, and the parent is allowed to socialize, play, or work on any school activities together.
In this supervised scenario, the parent may be forced to follow a few rules. For example, the judge may force the parent not to use a controlled substance or drink alcohol 12 hours before visiting the child. In addition, the parent may also have to complete a battery presentation and intervention program before visiting their child.
Protective Order and Modification of Possession Order
If you fail to abide by these non-custodial parenting laws and possession orders, your spouse may attempt to modify your rights. If violence is involved, your former spouse may attempt to have a restraining order levied against you. Thus, you won’t have any visitation rights.
However, if the custodial parent has a change of circumstance, you can also seek a modification of the possession order. This is where you can potentially change from a non-custodial parent to a custodial parent. Here are common reasons this may occur:
- The custodial parent is relocating
- You have evidence to provide that your child is in danger
- Incarceration or death of a custodial parent
- The other parent fails to follow custody terms
- The child’s needs have changed
When dealing with child custody, it’s best to consult with a family attorney familiar with the Texas law and court system. At Maynard Law Firm, we provide solutions to help you with child custody, modifications of court orders, and conservatorship. We’ll strive to resolve the dispute with your children and spouse without heading to court.
However, if legal action is required, we’ll fight to keep your rights as a parent and keep your children. Putting off your decision to get help from an attorney could make matters much worse. Call us today at 817-335-9600, so we can provide the advice and help you need.