Judges are often confronted with making difficult decisions regarding custody and visitation of minor children. Most States have passed statutes that give the courts some guidance on how to decide what the parent’s status will be and who will have custody and who when visits will occur. The statutes provide guidance but more often than not allow the individual judges a significant amount of room to use their own judgment based on the best interest of the child.
Joint or sole managing conservatorship is determined according to the best interests of the child. The sex of the parents is not a factor for consideration. The wishes of the child may be considered. The factors to be considered in determining the terms and conditions for possession of a child by the possessory conservator (parent with visitation) are as follows: the age, circumstances, needs, and best interests of the child; the circumstances of the parents; evidence of any spousal or child abuse; and any other relevant factor.
The factors specified in the statute for consideration in decisions regarding joint managing conservatorship are: whether the physical, psychological, or emotional needs and development of the child will benefit; the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interests; whether each parent can encourage and accept a positive relationship between the child and the other parent; whether both parents participated in child rearing before the filing of the suit; the geographical proximity of the homes of the parents; if the child is twelve years old or older, the preference of the child; and any other relevant factor.
The Court may not award joint managing conservatorship if there is any credible evidence of spousal or child abuse or neglect. Parents may file a written agreement with the Court regarding joint managing conservatorship. The Court will award joint managing conservatorship based on an agreement between the parents if the agreement: establishes the county of residence of the child; states the rights and duties of each parent regarding the child’s present and future care, support, and education; includes provisions to minimize disruption of the child’s schooling, daily routine and association with friends; was entered into voluntarily and knowingly; and is in the best interests of the child. In addition, there are standard terms for a Court’s order on a child’s conservatorship set out in the statute that are presumed to be the minimum allowable time that the parent who is not awarded the primary physical residence of the child is to have the child.