Children are often caught in the middle when their parents decide to divorce. Texas law spells out the procedures for determining the custody and visitation rights of parents with respect to children. But what about the children themselves? Do they have any rights under the law? Reach out to a custody lawyer near you for more information on these questions, and read through the information below.
The Right to Be Heard During a Conservatorship or Possession Hearing
Texas law uses the terms “conservatorship” and “possession orders” rather than “custody” and “visitation.” In most cases, a Texas court will name both of a child’s parents as joint managing conservators. This means the parents will share decision-making authority over the child. The possession order determines when each parent has the right to spend time with the child. Texas law has a Standard Possession Order that contains a default schedule if the parents cannot agree on one themselves.
So does the child get any say in this? Under Texas Family Code 153.009, in a non-jury trial or hearing, the judge may interview a child who is at least 12 years old with respect to their wishes as to conservatorship or possession. The interview may be requested by either parent, an attorney appointed to represent the child in the proceeding, or even the judge on their own initiative. This attorney, and the legal counsel for the parents, may also be present when the judge conducts the interview.
It is important to understand that the court is in no way bound to rule based on the child’s expressed wishes. The legal standard when making any final determination regarding conservatorship or a possession order is what will be in the “best interest of the child.” This requires the judge to consider a number of factors spelled out under Texas law. The child’s expressed wishes is just one factor–and it is not considered dispositive. So the judge is ultimately free to issue orders that may contradict what the child says they want.
The Texas Children’s Bill of Rights
The Texas Legislature has also adopted a Children’s Bill of Rights designed to afford a child certain protections from any acrimony in the relationship between their parents. This “Bill of Rights” is actually a series of 31 guidelines. A judge can incorporate its terms into a final divorce decree or judgment regarding conservatorship or possession. In such cases, a judge could impose penalties on a parent who fails to comply.
A key function of the Children’s Bill of Rights is to ensure that the child continues to have access to both parents. Some specific provisions on point include:
- The child has the right to reasonable use of the telephone to call, and receive calls, from the other parent or other relatives. The child has the right to take those calls privately without “unreasonable interference” from the parent as to time.
- Neither parent should say or write anything derogatory about the other parent to the child.
- The parents should avoid allowing the child to overhear their arguments or any discussions related to their divorce or custody proceedings.
- Neither parent should physically or psychologically pressure the child to take their side in any ongoing legal proceeding.
- Neither parent shall communicate moral judgments about the other parent’s values, lifestyle, choice of friends, or successes and failures in life to the child.
- Neither parent shall interfere with communications between the other parent and the child–e.g., the parent will not “lose” or “forget” messages from the other parent.
- Neither parent will interrogate the child about the other parent.
- Neither parent will encourage the child to disobey the other parent or another relative.
- Neither parent will reward the child for acting negatively towards the other parent.
- Neither parent will suggest or try to make the child believe that they love the child more than the other parent.
- Neither parent will discuss any issues related to child support with the child.
- Neither party will punish the child physically, or threaten such punishment, to influence the child to act negatively towards the other parent.
- Neither parent will permit the child to be transported by any person who is under the influence of drugs or alcohol.
- Neither parent will smoke tobacco products in an enclosed structure or vehicle when the child is present.
Contact a San Antonio Child Custody Lawyer Today
Child custody and visitation disputes are difficult for all parties involved. This includes both the parents and the child. If you need experienced legal advice on how to resolve these disputes from a skilled San Antonio child custody attorney, call The Law Office of David J. Rodriguez, PLLC, today at (210) 716-0726 or contact us online. Our family custody lawyers are eager to serve you today.
