Decisions regarding their children are the most important and difficult decisions our clients make. We take these issues very seriously, and we handle cases involving children with extreme precision and sensitivity. Many clients worry about how a judge or jury determines which parent should have custody. The California Family Code dictates that, when determining any decision on behalf of the children, a judge or jury shall be guided by the child’s best interest. A judge or jury cannot base their decisions on gender or marital status. Instead, the court examines a multitude of factors to determine what is in the child’s best interest.
Possession & Access
A possession and access schedule is a specific schedule for families to follow so that the children and both parents have a predictable outline for when the children will be with each parent. Orders in California include language that these schedules are “in the absence of mutual agreement.” This means that the parents can agree to be flexible with the schedule if that works for their children and their family, but should they fail to reach a mutual agreement, there is a schedule to fall back on.
Possession and access schedules can vary greatly depending on the circumstances of the children. The court will look at evidence of both parents involvement in the children’s day-to-day lives, what the children are accustomed to, the special needs or circumstances of the children, and the distance between the parents’ homes (among many other factors), to determine what is in the best interest of the children.
In California, the vast majority of possession schedules contained in orders are Standard Possession Schedules. These schedules provide that the kids reside with one parent on Mondays, Tuesdays, and Wednesdays of each week and the second and fourth Fridays and weekends of the month, and the other parent on Thursdays of each week and the first, third and fifth Fridays and weekends of the month. The holiday and summer periods of possession are divided up equally between the parents.
In some circumstances, the court, or the parents by agreement, may make minor tweaks to the Standard Possession Order to make it work best for their children.
The Standard Possession Order is typically the schedule that courts impose for parents that can’t agree on a possession schedule on their own. Various circumstances may warrant a deviation from what is considered “typical,” and may require a further examination by the court to determine what is in the best interest of the children.
Some parents believe that a Standard Possession Order is not what is best for their kids. Others may allege that they have jointly and equally shared in raising their children during their marriage, and that should not change because they are divorcing. In these instances, some parents will request a possession schedule that provides equal amounts of time with both parents (a 50/50 schedule). There are many ways to craft a 50/50 possession schedule; parents may alternate weeks, divide the week in half and alternate weekends, or develop some other arrangement that divides time equally over the year.
Requesting any schedule that deviates from the Standard Possession Order is nuanced and fact specific.
Some circumstances necessitate a more creative approach to formulating a possession schedule. Some examples include when one parent is a pilot or first responder, and their work schedules are not consistent from month to month or even week to week. We can assist you in advocating for creative solutions that accommodate the children’s needs and your need to work and support your family.
When children are under the age of three, courts will also typically impose a creative schedule for possession. The courts believe that with small children, frequent and short periods of possession are considered best so that both parents can see the child regularly, bond, and allow the baby to form a healthy attachment to both parents. Factors such as nursing, co-sleeping, and the ages of other siblings can contribute to what schedule type is best for a child under the age of three.
These schedules can change over time. As the children get older and involve themselves in academic obligations and extracurricular activities, the possession schedule may need to be modified to reflect their preferences and schedules.
Unfortunately, many situations necessitate a more restrictive possession schedule to ensure the safety and well-being (both physical and emotional) of the children. These restrictions may be due to drug use, alcohol abuse, family violence, or an untreated mental impairment. The court may also impose limits on possession if a parent is a flight risk. In these instances, the court can order limited periods of possession and/or that the periods of possession be supervised by a professional that is adept in not protecting the physical safety of the children, as well as providing feedback and counseling on the emotional well-being of the children while in that parent’s care. Another option, specifically in cases involving drugs and/or alcohol, is a possession schedule that is contingent on the parent submitting to testing before and during periods of possession to ensure they are not under the influence of drugs or alcohol.
Fortunately, we have many means of assessing and addressing these circumstances. We understand that your child’s health, happiness, and safety are of the utmost importance, and we will use every tool in our power to advocate for your family as if they were our own.
In high-conflict cases and cases involving mental impairment, drug/alcohol issues, or physical abuse, a court-ordered psychological evaluation of the parents or a custody evaluation of the family may be appropriate. In Texas, courts may order a qualified psychologist to conduct a forensic psychological evaluation and child custody evaluation to determine the nexus between each party’s psychological functioning and parenting skills.
The evaluator will conduct interviews with parents, children, and additional caregivers, as well as collateral witnesses such as teachers, friends, and family members. Additionally, the assessment will include a thorough and detailed analysis of the child’s medical history, mental health, and education records. The custody evaluator will perform supplementary tasks and interviews to evaluate the functioning of the parenting and the impact of their parenting on the children and, ultimately, to make recommendations to the court.
‘Conservatorship’ is how parents make decisions. In a conservatorship, the three most important duties are the rights to make medical, educational, and psychological decisions for the child. These decisions can either be made jointly by agreement, independently by each parent, or allocated between the parties. For example, if one parent makes all medical decisions and the other makes all educational decisions, then the conservatorship is allocated between the two parents.
Additionally, the right to designate the primary residence of the child is determined by one parent or by a specific geographic boundary, and the right to receive child support may be awarded to one of the parents.
‘Child support’ is when an obligee (the parent receiving child support payments) is granted financial support from an obligor (the parent responsible for making the child support payments) to support the needs of their children. The Texas Family Code provides guidelines for the calculation of the support payment amount; however, the court can sometimes order above the guidelines. In certain circumstances, the court will consider altering the payment amount by examining evidence of the children’s proven needs (including, but not limited to, any special needs or specialized educational or health requirements).
While it can appear that child support is merely a mathematical equation, that is not always the case, so it is important to speak with a lawyer about the facts specific to your case and your children’s needs.
Many people think of kidnappings and child abductions as acts that occur at the hands of a stranger; however, many abductions are committed by someone your children know, and sometimes that person is a parent. If a parent withholds or absconds with a child, there are legal remedies available, but they require swift and aggressive action on your behalf.
Suits Affecting Parent-Child Relationships and Modifications
A Suit Affecting the Parent-Child Relationship is either a stand-alone lawsuit or the portion of a divorce that relates to child support, conservatorship (decision making), possession and access, and the right to determine the primary residence of the child (custody). We typically see these cases if parents that have never been married decide to separate and have never formally entered into orders concerning their children. A Modification is a lawsuit filed to modify a prior order.
Rights of Extended Family and Stepparents
Biological parents aren’t the only people who advocate for the rights of children. When a parent dies, CPS becomes involved, or a parent is otherwise impaired, stepparents and grandparents can find themselves in the position of fighting for the best interests of children in their family. These parties face exceptional hurdles, but experienced attorneys like ours know how to navigate these seemingly insurmountable roadblocks.
These cases are rare and incredibly specialized, so finding aggressive and experienced attorneys can be challenging. We have the experience and the skills necessary to give you guidance regarding your rights and options to handle these difficult cases.