Spring 2006

Spring 2006 Newsletter

This Month: Joint Conservatorship (Custody):  Is it Really Joint?  Is it Equal?

     Often I will ask a potential client what type of conservatorship they want.  The answer often given:  "I want joint."  Well, what does that mean?  If that person thinks he and the ex-spouse will have equal rights as to the children or that they will be able to jointly raise the children after the divorce, then requesting Joint Managing Conservatorship is not sufficient to achieve a goal of joint parenting or equal parenting.  The common meaning of "joint" is doing something together, or "two persons holding the same position and exercising it together."  Joint Managing Conservatorship does not work that way in most cases.

     The terminology in family law leaves a lot to be desired.  The Texas Family Code and the Family Law Courts almost always designate both parents as "Joint Managing Conservators."  That doesn't mean, however, that the parents are treated equally in any way that matters.   

     Here is how the law stands now.  First of all, one of the Joint Managing Conservators will be given the right to determine the primary residence of the children.  Sometimes there won't even be a geographic restriction imposed on the residence of the children, which means that parent may move the kids to California or France if they so desire.  How equal does the other parent feel under those circumstances? 

     Second, the Joint Managing Conservator with the right to determine the primary residence of the children (henceforth, the "Primary JMC") will almost always be given the right to receive child support from the other parent.  OK, so the Primary JMC, a.k.a. my Ex, is able to move the kids to California and I get to pay child support and provide health insurance as well.  I am not feeling real equal at this point.

     But wait, there's more.  Third, the Primary JMC is usually given the right to make the education decisions for the children and to make invasive medical decisions regarding the children.  The Primary JMC doesn't even have to consult the other JMC about these crucial decisions before he or she makes them.  So my kid is moving to California with his mom, I get to pay child support based on my income alone not taking into account the income his mom makes, she decides he needs surgery and the first I hear about it is when I get a bill for half of the uninsured expenses. 

     Let's assume for the moment that the Court that granted the divorce also had the wisdom to impose a residence restriction on the children's residence to Tarrant County and surrounding counties.  The primary JMC may still move the children, but only within the restricted area.  Nonetheless, now I am having to drive to the East side of Dallas (I live in West Fort Worth) to pick up my children for their visit s.  I also have to bring them back to the other parent's home at the end of the visit.  What is equal about that? 

     So my ex and I are both JMC's or Joint for short, but she decides where they live, I pay child support to her, I provide the health insurance for the kids, and I do the driving both ways in order to exercise my visitation with my kids.  Is that the end of the inequity?

     Sorry.  There's more inequity:  possession time.  The Primary JMC according to the family code and to what most Courts do, has the children all the time except for the periods of visitation granted to the other JMC.  The Courts presume that the Standard Possession Order is in the best interest of children and almost always sets the possession periods according to it.  This means the non Primary JMC is allowed to have the children on the first, third and fifth weekends of the month, half of the holiday time and  30 days in the summer.  That isn't equal is it?

   To summarize, there is inequity in deciding the child's residence, financially providing for the child, making decisions about the child's life, the travel necessary to exercise possession time, and the amount of possession time.

     Of course, if the parents agree between themselves to work out a more equal arrangement with respect to place to live, school to attend, driving for exchanges of the children, no child support payable, and shared or independent rights and duties, then that may be approved by the Court in an agreed decree.  Some courts, however, require that one of the parents pay child support to the other even when the parents agree with each other that it is not necessary. 

    It is important to know what is inside your particular jar labeled "Joint Managing Conservator", and to know how you should negotiate for more equality between the parents in getting the divorce settled.  Here are a few tips to make your Joint Managing Conservatorship more joint and equal.

1.     Negotiate for a residence restriction on the children's residence.  Tarrant and contiguous counties is the common restriction used in Tarrant Courts.

2.     Try to get equal possession time or at least the Expanded Standard Possession Order which allows for more overnight possession time for the non- primary JMC parent.

3.     Negotiate for shared driving.  You pick up the kids from mom or daycare when you are starting your possession periods, and mom picks up from you at the beginning of her possession periods, for example.

4.     Negotiate for no payment of child support by one party to the other.  Negotiate for the cost of the insurance premiums for health insurance on the children to be shared equally.

5.    Know how the rights and duties are divided or shared.  My suggestion in most cases is to make sure that the decree provides that both parents must agree on education decisions and giving consent for invasive medical treatment.  Other rights should be independently exercisable by each parent.