Generally divorces with kids or suits affecting parent-child relationship require courts to determine which parent is able to determine where the children based on the “best interest of the child” standard. In Texas, it is presumed that the parents should be appointed Joint Managing Conservators which allows both parents to generally have the same rights and duties, except one parent must have the exclusive right to determine the primary residence. Other important rights and duties include the right to make education decisions, right to make medical decisions, and right to authorize and choose a counselor. The only “exclusive” right that the Court is required to determine is which conservator (or parent) shall have the exclusive right to determine the primary residence.
The Court does have the ability to sign an order in which there is not a conservator with the exclusive right to determine the primary residence but the children are restricted or ordered to live within a geographic area, usually a school district. This is only done in cases where the conservator (or parents) reach this agreement. The Court cannot order this. Therefore when a case is tried to a jury or to a judge, there is a “winner” and a “loser”. Typically, one parent will be awarded custody or the right to determine the residence and the other parent will be awarded visitation in accordance with a standard possession order.
Trials often render a type of “all or nothing” results even in close call decisions. Additionally, the “winner” gets child support, and the “looser” pays. This “winner take all” system often results in perpetual litigation in close call cases whereby multiple lawsuits are filed seeking modification in subsequent years. This perpetual litigation with its negative effects on the children most often arises in otherwise good families.
Even when a case is tried to a jury, judges still determine the issues of visitation and access. A judge will usually grant the “loser” or non-custodial parent a standard possession order, because it is easier than issuing a unique court order for every case and because the Legislature has told judges that the standard possession order is deemed to be in the best interest of the child. In order to obtain a visitation schedule that is either more or less than the standard possession order, the petitioner must overcome the legislatively created presumption that the standard possession order is in the best interest of the child.
Your attorney must have a realistic picture of the strength of your case and know how the judge is likely to rule on any set of facts. It’s your attorney’s job to figure out how you win, but be sure to tell your attorney how you lose so your attorney doesn’t get caught off guard. Problems in your case can only be fixed if they are identified. The court room is too late.
The core competency of an attorney is advocacy. Your attorney works for you and is paid to get you the best result possible. Your attorney may encourage you to take a more or less aggressive approach than what you would normally take. You are always free to disregard your attorney’s advice. The buck stops with you. A competent attorney will make sure you make well informed decisions and provide you the best chance of achieving your goals through the lifecycle of your case whether it be settlement or trial.