International Academy of Law and Mental Health CHILDREN AND DIVORCE THE TEXAS APPROACH TO MITIGATION OF FAMILY CONFLICT; CHILD CUSTODY AND VISITATION BY STATUTORY PRESCRIPTION Slides by John J. Sampson

Source of Discussion This lecture is based on “Choking on Statutes Revisited: A History of Legislative Preemption of Common Law Regarding Child Custody.” 45 Fam. L. Q (2011). (Available at choking-on-statutes-revisited.pdfhttp:// choking-on-statutes-revisited.pdf /choking-on-statutes-revisited.pdfhttp:// /choking-on-statutes-revisited.pdf 2

Lecture Materials These PowerPoint slides also can be found onThese PowerPoint slides also can be found on IALMH LECTURE JJShttp:// IALMH LECTURE JJS /choking-on-statutes-revisited.pdfhttp:// /choking-on-statutes-revisited.pdf 3

Texas History Lesson Before 1973 NO F AMILY C ODE re CHILDREN, but since 1969 Title 1. Husband & Wife Statutory regulation modestly extensive, but totally without organization, e.g., Vernon’s Ann. Civ. Stat. 46a, 2338, 4618, etc. spread over 75 volumes. Jan. 1, 1974 = T EXAS F AMILY C ODE added Title 2. Parent and Child. 4

History of Custody & Visitation Before 1973 continuing to 1983; Typical Court Decree 1. Mother to have “sole custody” of child or children. 2. Father entitled to “reasonable visitation.” 3. Court discretion virtually absolute re custody, visitation and child support, but the details were seldom, if ever, elaborated. 5

History of Custody & Visitation Beginning Jan. 1, 1974, and continuing to 1983 the Family Code provided that presumptively one parent is to be appointed Sole Custodian of child or children, retaining “all the rights, privileges, duties, and powers of a parent, subject to the rights, privileges, duties, and powers provided in the code to the other parent and to any limitation imposed by court order in allowing access to the child.” 6

History of Custody & Visitation Beginning Jan. 1, 1974, and continuing to 1983 the Family Code provided that presumptively the other parent is to be appointed “Possessory Custodian” of child or children [meaning the father “possessed certain, listed statutory rights and duties.” This “Winner-Loser” scheme almost immediately became the focus of controversy between the sexes in the legislature. 7

1983: The Watershed Year 1. GOODBYE TO “REASONABLE VISITATION” FOR DAD, A MEANINGLESS ORDER 2. HELLO! GUIDELINES FOR POSSESSION OF A CHILD FOR NONCUSTODAIL PARENT, a.k.a. “NCP” 3. HELLO!! HELLO!! STANDARD POSSESSION ORDER 8

History of Custody & Visitation From 1983 onward, the Texas Legislature became a focal point for reform of the Family Code thanks to the response of the general public to legislative regulation of the subject, plus self-selecting interest groups, e.g., Texas Fathers for Equal Rights, and a wide variety of women's’ groups including Junior League, CASA, TCFV (Texas Council on Family Violence), ACES, etc. 9

Enough History, Already Regarding Texas Law of today, perhaps historians will be interested in the four volumes of Texas Family Code Symposium. 8 Texas Tech L. Rev. No (254 pp.) 13 Texas Tech L. Rev. No (850 pp.) 21 Texas Tech L. Rev. No. 3A 1990 (315 pp.) 21 Texas Tech L. Rev. No. 3B 1990 (726 pp.) 10

§ Appointment of Sole or Joint Custodian (a) In a suit, the court may appoint a Sole Custodian or may appoint Joint Custodians. If the parents are or will be separated, the court shall appoint at least one custodian.. (b) A custodian must be a parent, a competent adult, an authorized agency, or a licensed child-placing agency. 11

§ Agreed Parenting Plan (a) To promote the amicable settlement of disputes between the parties to a suit, the parties may enter into a written agreed parenting plan containing provisions for custody and possession of the child and for modification of the parenting plan, including variations from the standard possession order. 12

(b) If the court finds that the agreed renting plan is in the child’s best interest, the court shall render an order in accordance with the parenting plan. (c) Terms of the agreed parenting plan contained in the order or incorporated by reference regarding custody or support of or access to a child in an order may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as a contract. 13

§ Presumption That Parent to be Appointed Custodian (a) … [U]nless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed Sole Custodian or both parents shall be appointed as Joint Custodians … 14

(b) It is a rebuttable presumption that the appointment of the parents of a child as Joint Custodians is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection. 15

§ Rights and Duties of Parent Appointed Sole Custodian Unless limited by court order, a parent appointed as Sole Custodian of a child has the rights and duties provided by Subchapter B and the following exclusive rights: (1) the right to designate the primary residence of the child; [and 8 more rights NOT EXTENDED to a parent who IS NOT APPOINTED as a “joint custodian.”] 16

§ Parenting Plan for Joint Custody (a) If a written agreed parenting plan is filed with the court, the court shall render an order appointing the parents as Joint Custodians only if the parenting plan: (1) designates the conservator who has the exclusive right to designate the primary residence of the child and: 17

(A) establishes, until modified by further order, the geographic area within which the custodian shall maintain the child’s primary residence; or (B) specifies that the custodian may designate the child’s primary residence without regard to geographic location; (2) specifies the rights and duties of each parent regarding the child’s physical care, support, and education; [and 4 more requirements, including “best interest”] 18

§ Equal Possession Not Required Joint custody does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the Joint Custodians. 19

§ Policy and General Application of Guidelines (a) The guidelines established in the standard possession order are intended to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a noncustodial parent a.k.a NCP, or as the minimum possession for a Joint Custodian. 20

(b) It is the policy of this state to encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child. (c) It is preferable for all children in a family to be together during periods of possession. (d) The standard possession order is designed to apply to a child three years of age or older. 21

§ Rebuttable Presumption In a suit, there is a rebuttable presumption that the standard possession order in Subchapter F: (1) provides reasonable minimum possession of a child for a parent named as having visitation or a Joint Custodian; and (2) is in the best interest of the child. 22

23 Required Duties of Custodians Tex. Fam. Code §

24 Required Duties of Custodians Tex. Fam. Code § If a parent is going to live with or marry a registered sex offender, that parent has to give notice to the other parent.

25 Rights of Parents During Periods of Possession Tex. Fam. Code § Since Mr. Wentworths rights in this regard are exactly the same, they are not being repeated for Mr. Wentworth in this PowerPoint. Each parent, however, should have all of these rights listed in the Decree, unless there is good cause for not allowing such.

26 Rights of a Custodian Tex Fam Code These are the primary, most important parental rights regarding the children.

27 Rights of a Custodian Tex Fam Code Of the parental rights listed on this slide, the one most often disputed is the exclusive right to make decisions concerning the children’s education.

28 Rights of a Custodian Tex Fam Code No one yet knows what right no. 9 actually means. When is a child’s action required by a state, the USA or a foreign government? [The Family Code lists it as a right, so all Decrees have it, though]. Right no. 10 applies to property on hand at the dissolution of the marriage and not property gifted or otherwise acquired by children post- divorce

29 Primary Residence Restriction This is a restriction that requires the primary residence of the children to be in either Travis County, Texas or a county that is immediately contiguous to Travis County, Texas. Though this is a very standard restriction, many other restrictions are available, both smaller & larger (smaller: a school district; larger: the State of Texas.

30 Primary Residence Restriction This is a restatement of the first enumerated right of a sole or joint custodian of a child. It’s standard to put it in twice, but it’s clearly redundant of right no. 1.

31 Primary Residence Restriction Once the non-primary-residence parent moves outside of the geographic area designated for the child’s primary residence, the parent with the right to establish the primary residence of the child can move away without asking permission from the Court.

32 Passports Not always, but usually the parent with the right to establish the primary residence of the child is the keeper of the passports. There are paragraphs that follow this in the Decree that are not replicated here, but which are part of the “passport plan.” Unlike many of the prior provisions, none of this is required by statute, but is sometimes a good idea when the parents travel overseas from time-to-time.

33 Standard Possession Order Tex. Fam. Code § Mutual Agreement Or Specified Terms For Possession Tex. Fam. Code § Parents Who Reside 100 Miles or Less Apart Tex. Fam. Code § Parents Who Reside Over 100 Miles Apart Tex. Fam. Code § Holiday Possession Tex. Fam. Code § Weekend Possession Extended By Holiday Tex. Fam. Code § General Terms And Conditions Tex. Fam. Code § Limited Possession During Military Deployment Tex. Fam. Code § Alternative Possession Times

34 Definitions “School” is a defined terms, and covers the situation where the child is too young to be in school. Note that “possession” of a child is only governed by the Court through age 18, even though child support may continue past age 18 if the child is in high school (with certain normal conditions – like attempting to graduate).

35 Mutual Agreement Court-ordered possession of a child is secondary to any mutual agreements made in advance by the parties.

The Family Code has two regimes of possession: one when the parents reside within 100 miles of each other [apparently thought of as close together in Texas], and the other when they do not live closely. Some Decrees only have one. Other Decrees cover both, just in case one party moves. 36

§ Parents Who Reside 100 Miles or Less Apart (a) If the Noncustodial Parent resides 100 miles or less from the primary residence of the child shall have the right to possession of the child as follows: (1) on weekends throughout the year beginning at 6 p.m. on the first, third, and fifth Friday of each month and ending at 6 p.m. on the following Sunday; and 37

(2) on Thursdays of each week during the regular school term beginning at 6 p.m. and ending at 8 p.m., unless the court finds that visitation under this subdivision is not in the best interest of the child NOTE: This section and others go on to cover vacations, holidays, and the long period in summer in which school does not meet. 38

39 Weekends [Expanded] Weekends can start at the time school lets out, at 6 p.m., or any time in between. Non-primary-parents have certain “elections” that can be made that give them the prerogative to select these start times. See Tex. Fam. Code § Alternative Possession Times.Tex. Fam. Code § Alternative Possession Times Weekends can end at the time school lets resumes, at 6 p.m. on Sunday. Non-primary-parents have certain “elections” that can be made that give them the prerogative to select these start times. See Tex. Fam. Code § Alternative Possession Times.Tex. Fam. Code § Alternative Possession Times

40 Weekends [Extended by a Holiday] Tex. Fam. Code § Weekend Possession Extended By Holiday

41 Thursdays Tex. Fam. Code § Parents Who Reside 100 Miles or Less Apart (a)If the joint custodian resides 100 miles or less from the primary residence of the child, the joint custodian shall have the right to possession of the child as follows: * * * (2) on Thursdays of each week during the regular school term beginning at 6 p.m. and ending at 8 p.m., or, at the joint custodian's election made before or at the time of the rendition of the original or modification order, and as specified in the original or modification order, beginning at the time the child's school is regularly dismissed and ending at the time the child's school resumes, unless the court finds that visitation under this subdivision is not in the best interest of the child. [Emphasis added].

42 Possession by Default 1. The Family Code defines specific periods of possession for the parent without the right to establish the primary residence of the child, i.e., a Standard Possession Order. 2. Then, the Family Code gives the primary parent some superior rights of possession for holidays and the summer. That way, these superior possession right periods trump weekends, etc. of the other parent. 3. Finally, by default, other times not specifically allocated are allocated to the parent with primary possession.

43 “Surrendering” the Child This is the language that, in part, makes the Decree “enforceable.” Here, the parent is ordered to surrender (turn over) the child to the other parent when his period of possession begins. The Decree also designates where this is to happen, which is a negotiable item (but which is usually the way it is depicted in this slide). By making this a “Court Order” (i.e., “Suzanne Wentworth is ORDERED …”), the Decree may be enforced by a Motion for Contempt if no surrender takes place. There are other “surrender” provisions for each parent that are not replicated in this PowerPoint (i.e., pick up & return from & to school).

44 Returning the Child Note two things: (1) Mr. Wentworth must return the child to Mrs. Wentworth’s residence [a standard, but negotiable, provision], and (2) if Mrs. Wentworth moves outside Travis County, as of that point in time, Mr. Wentworth “surrenders” [not returns] the child to her at his residence, not hers. See Tex. Fam. Code § (3)(b). General Terms And Conditions. Tex. Fam. Code § (3)(b). General Terms And Conditions

45 Personal Effects This is a statutorily required provision. See Tex. Fam. Code § (5). General Terms And Conditions.Tex. Fam. Code § (5). General Terms And Conditions

46 Designation of Competent Adult for Pickups & Returns This is a statutorily required provision. See Tex. Fam. Code § (6). General Terms And Conditions.Tex. Fam. Code § (6). General Terms And Conditions

47 Miscellaneous Provisions These are statutorily required provisions. See Tex. Fam. Code § (7)(8)& (9). General Terms And Conditions.Tex. Fam. Code § (7)(8)& (9). General Terms And Conditions

48 The End