When to Fight for Full Custody

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This is a hard question to address. When clients come to me with this question, we work hard to dive deep into the reasons behind that question. First of all, what does that really mean? Because it means different things to different people. Let’s start with “custody.” That’s an outdated term under Texas law. The correct terms under current Texas law are “conservatorship” and “possession and access.”

Conservatorship can be granted in a few different forms by courts. There is “joint managing conservatorship” – the majority of divorced parents in Texas are now named Joint Managing Conservators and often have equal but independent rights to make decisions for their children, usually dictated by when they have time with their children. And then there are a relative few number of scenarios where one parent is named a “Sole Managing Conservator” with exclusive rights to make all decisions regarding their children; and the other parent is named a “Possessory Conservator,” which means they have some defined right of time (sometimes supervised) with their children and limited or no rights to make decisions on their behalf.

“Possession and access” may be one of my least favorite terms in the Texas Family Code. Somewhere along the line, Texas legislators decided that the time divorced parents spend with their children should be called “possession and access.” One day, your children are likely to get a copy of your divorce decree and read it. Is that really what you want them to read about themselves? Unless you have evidence that it is not in the best interest of your children to spend time with the other parent, that parent will almost surely be granted time under what is known as the “Standard Possession Order.” (Again, great messaging, right?) That order generally allows the parent time with the children on first, third, and fifth weekends of each month throughout the year, as well as a mid-week evening, extended time during the summer, and holidays. With an election by that parent, those weekends can be extended by an additional Sunday overnight as well as an overnight during each week. This is an election by that parent and one that is difficult to deny without evidence that it would be somehow damaging to the children.

So, when should you fight for full custody? First, it depends on what you mean when you use those words. And second, it depends on what the circumstances of your family are. If your reasons are ultimately because you think the other parent isn’t going to parent in the same way you are – eating certain types of food, participating in certain activities, putting them in certain types of clothes, living in an apartment versus a house – those are just parenting differences of opinion and aren’t going to get you there. But if there is a question of alcohol or drug addiction, or certainly one of abuse, that’s something that needs to be considered and addressed. For those differences in parenting decisions, keep in mind that no matter the differences, children love each of their parents deeply and want to have as much time with both of them as they can. As you put together your parenting plan (that unfortunate worded “possession and access schedule”), work hard to put your children’s needs ahead of your own emotions to create a schedule that is best for them. It’s not always an easy ask, but by doing so, you will have the opportunity to watch your children flourish in two homes with two parents who love them.

Rhonda Cleaves is a divorce attorney in Plano. She focuses her practice on Collaborative Divorce and represents clients throughout the DFW metroplex, including Plano, Frisco, Allen, McKinney, Carrollton, Dallas, and Richardson. Call her office at (972) 403-0333 if you need legal advice for your divorce.

Rhonda Cleaves

Rhonda began practicing law in 1995. She left a successful civil trial practice in 2005 to concentrate on family law—specifically, helping families transition to postdivorce life. She now practices exclusively in this area.

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