When NOT to Compromise on Custody Issues in a Divorce

The answer to this question is plain and simple – when you believe that the safety and welfare of your children will be jeopardized if you choose to compromise. Let’s be honest, when it comes to divorce emotions run high and all too often parties get hung up on titles or on “besting” the other parent to the detriment of their children. A zero-sum game framework is not conducive to a healthy co-parenting relationship.

The number one issue that parties get hung up on is who gets to designate the primary residence of the children. The parent with this right is generally referred to as the primary conservator. This parent gets to designate the primary residence of the children and generally is also the parent who will receive child support. This is certainly an important right, but in practical application it may mean much less than you think. This is because conservatorship in Texas consists of two parts, the rights and duties and possession and access. Just because a party has the right to designate the primary residence of the children does not mean that they have the exclusive right to make all other decisions for your children. All of the other rights listed below can be designated either exclusively to one parent, joint (decision must be made together), or independent (each parent can make the decisions on their own), so just because you are not the primary conservator does not mean that you do not get to have a say in important parenting decisions.

  • the right to consent to medical, dental, and surgical treatment involving invasive procedures;
  • the right to consent to psychiatric and psychological treatment of the children;
  • the right to receive and give receipt for periodic payments for the support of the children and to hold or disburse these funds for the benefit of the children;
  • the right to represent the children in legal action and to make other decisions of substantial legal significance concerning the children;
  • the right to consent to marriage and to enlistment in the armed forces of the United States;
  • the right to make decisions concerning the children’s education;
  • except as provided by section 264.0111 of the Texas Family Code, the right to the services and earnings of the children;
  • except when a guardian of the children’s estates or a guardian or attorney ad litem has been appointed for the children, the right to act as an agent of the children in relation to the children’s estates if the children’s action is required by a state, the United States, or a foreign government; and
  • the duty to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parent.

Further, if you ask for an expanded standard possession schedule the time each parent gets to spend with the children is nearly even. With an expanded standard possession schedule, possession and access begins and ends at the time the children start and are dismissed from school. So, instead of picking up the children at 6:00 PM on Friday and dropping them off on Sunday at 6:00 PM, you will pick them up at school on Friday afternoon and return them to school on Monday morning. This gives you one extra overnight period of possession. Additionally, instead of having the children for Thursday dinners during the school year from 6:00 PM to 8:00 PM that same evening, you get the children from the time they are released from school on Thursday until they return to school on Friday morning every week during the regular school year.

With all of the above in mind, at the end of the day if you believe that the safety and welfare of your children will be endangered if you compromise on a specific issue, then compromise may not be in your children’s best interest. Attorney’s fees can get expensive, but it is better to address certain issues during a divorce rather than trying to modify an order later. On modification, you have the burden to show that there has been a material change in circumstances since the underlying order. So you cannot introduce evidence of things that took place prior to the divorce, except in very limited circumstances. Therefore, if you do not bring up an issue during the divorce, you may not have the opportunity to later. Further, if it wasn’t important enough for you to bring up in the initial proceedings, it isn’t likely the Court is going to ask why it is important enough to modify an order after the fact.

In sum, there may be times that you need to dig in your heels because it will benefit your children in the long run, but it is important to always weigh the costs and benefits of a certain course of action before pursing the same. At the end of the day, if both parties are excellent parents and have the ability to care for their children, fighting for the sake of besting the other parent will only negatively impact your children.

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