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Custody Wars

What Custody Does—and Doesn’t—Mean in Divorce

When a couple with kids decides to divorce, who gets what is simply part of it. This can include everything from the wedding china and living room furniture to retirement accounts and business ownership. Up much higher on the list is custody. Most couples will readily agree that nothing is as important in a divorce than nailing down the details of the custody arrangement. Both parents, understandably, want as much time as possible with their children—something that can become a challenge in today’s word with two different households across the city, demanding work schedules, and hectic school schedules.

Susan Rankin, a family law attorney with Quilling Selander Lownds Winslett Moser, says custody is one of the most commonly misunderstood aspects of a divorce. For years, it was a common assumption that the mother would be awarded primary custody of the child, with the father getting visitation rights every other weekend and a night or two during the week. As with most things, times have changed, custody arrangements included. She says many of her clients want a 50/50 schedule, or as close to it as possible, and many judges are starting there rather than the every-other-weekend schedule. Having “primary custody” of a child doesn’t necessarily mean that parent has the child at all times and is the one who determines the possession schedule—a common misperception. “Primary custody means you are the parent who handles most of the rights and responsibilities, such as enrolling them in school and making decisions about their education and healthcare,” Rankin says. “It has little to do with time spent with the child.”

If a divorce or custody modification are in your future, hiring a family lawyer not only with extensive experience, but also with experience in the courts in the county where you reside, is important for success

In a divorce, parents can be named as joint managing conservators, sole managing conservator, or possessory managing conservator. The different names refer to the rights and duties that each parent has with respect to one another. The appointment of joint managing conservator, sole managing conservator, or possessory conservator doesn’t assign possession period or access to the child. “Judges have evolved and are looking past the standard possession order,” Rankin says. “They are looking for what is best for the child post-divorce. When deciding about custody, they consider who has been primarily parenting the child up until this point and what plans, if any, are in place for involvement on both parties. They want what is best for the child, while also keeping in mind what will cause the least disruption to his or her routine. The Texas Family Code has a standard possession order, which can be used if an agreement can’t be made between both parties, but judges are starting to be more accepting of creative ideas that encourage involvement of both parents.”

Rankin often recommends her clients try to work together in mediation to come up with a workable plan for their family’s individual needs so that a judge doesn’t have to make the decisions for them. “Modifications to an order are possible, but you must prove there are new circumstances, or the child has new needs,” Rankin says. “This prevents couples from running back to court every time they don’t agree on something. Mediation can be costly, yes, but it’s much more expensive to go court.”

Teresa Evans, a family lawyer with Quilling Selander Lownds Winslett Moser, says ‘custody’ is a term that people use loosely, when what they are actually referring to is conservatorship—who is making the decisions. “Joint managing conservatorship is usually the standard starting point and we determine which parent or parents is best fit to make the important decisions for their children,” Evans says. “People get really hung up on percentages of time spent when drafting a standard or an expanded standard possession schedule I urge my clients to focus more on the quality of time spent with their children rather than focus on how many hours or days they may have in general. I think more people are able to get creative about how to make the most of their time with their children, rather than argue about who gets them and when. Some courts are taking a strong look at 50/50 type possession schedules where parents have close to equal time such as a week on- week off schedule or a 2-2-5 schedule. A 2-2-5 schedule could give one parent every Monday and Tuesday and the other parent every Wednesday and Thursday and then the Friday through Sunday periods of time would rotate weekly. These types of schedules are utilized for those who can make it work and do not get hung up on trivial details. However, that is not always a workable solution for parents who do not live in the same area or who travel a great deal for work.”

If a divorce or custody modification are in your future, hiring a family lawyer not only with extensive experience, but also with experience in the courts in the county where you reside, is important for success. Lisa Marquis, a family lawyer with Quilling Selander Lownds Winslett Moser, says the Dallas area is experiencing change in the judiciary, meaning you can’t always count on what your friend got in her divorce as your case likely won’t be tried in the same court or with the same judge. “It’s wise to talk to a lawyer who has expert knowledge about the judge who will most likely hear your case,” Marquis says. “But just as important is having confidence in the lawyer you choose. This isn’t the time to hold back information. The worst thing you can do is not tell your lawyer the whole truth about your situation. Going into a courtroom is basically a gamble every time. A more experienced lawyer will know and prepare you for all of the possible outcomes.”

To help create a workable custody plan that both parties can live with to hopefully avoid the courtroom altogether, Rankin, Evans, and Marquis recommend the following tips to make the process smoother and keep the kids out of it, so their daily schedules remain as undisturbed as possible.

  • Stop micro-managing the other parent. Remember, you are no longer married so their time with the kids is just that—their time.
  •  Avoid undermining the other parent. If possible, it’s best to maintain a united front when it comes to decisions about the kids’ education, healthcare, socialization, rules, discipline, etc. The kids need to know that even though they don’t all live in the same house any longer, the rules are the rules no matter where they sleep.
  • Use common sense when it comes to social media. Don’t try to humiliate or embarrass your former spouse on social media or discuss the divorce to win over your friends and followers. Bad-mouthing the other parent where everyone can see it will not help your case should it go to court. What you post on social media is there to stay, and eventually it will find its way to the kids.
  • Two wrongs don’t make a right. Just because you don’t like what is in your decree doesn’t mean you can ignore it. Follow the decree, whether you like it or not. The ability to change it will partly depend on how well you have behaved and adhered to what was placed in the document originally.

For more information on custody during divorce, please contact Susan Rankin at [email protected], Teresa Evans at [email protected], and Lisa Marquis at [email protected] Rankin has served as a judge in Dallas County since 1994. She received her J.D. from Texas Tech University School of Law and her and M.S. in psychology from Trinity University. She is co-author and a frequent speaker on family law topics. Board Certified in Family Law by the Texas Board of Specialization, she is sought-after for her expertise in collaborative law and mediation. Named among the Best Women Lawyers in Dallas in D Magazine, she is a member of the Annette Stewart Inn of Court and a former member of the Mac Taylor Inn of Court. Evans received her J.D. from the University of Miami. She has extensive family law experience with complex property divorce cases and highly litigated custody matters, uncontested divorces, pre- and post-marital agreements, adoption and termination suits, enforcement of child support and possession, and modification of child related issues. She is a former chair of the Dallas Bar Association Family Law Section, is a member of the Annette Stewart Inn of Court and has been named a Super Lawyer or Rising Star in Texas Monthly since 2008. Lisa Marquis received her J.D. from the University of Texas. She is well known for her work in collaborative law. Marquis has been secretary, vice-president, and president of the Collin County Bar Association, chair of the Collin County Bench/Bar Foundation, and vice-president of the Plano chapter of the American Business Women’s Association. She believes in settling family cases collaboratively whenever possible, but understands that some cases cannot be handled collaboratively. She also effectively represents clients in contested matters that are presented to the court for determination. However, even in those contested cases, she uses her training as a collaborative attorney to minimize the level of conflict between the parties.

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