Breaking Down the Sanders Divorce: Conservatorship in Texas

On March 12, 2013, the Texas jury in the Deion and Pilar Sanders divorce ruled that Deion Sanders would have Sole Managing Conservatorship of the couple’s two boys and that Deion and Pilar would be joint managing conservators of the couple’s daughter with Deion determining the daughter’s primary residence.  What does this mean and how does this ruling impact each parent’s ability to raise their children?

I always tell my clients to think of conservatorship as being two pronged: The first prong has to do with rights and duties to a child and the second prong deals with possession schedules – who is going to see the child when.  Today I am only dissecting the first prong of conservatorship as it relates to parents rights and duties to their children.

In Texas, there is a presumption under the law that it is in a child’s best interest for two parents to be named Joint Managing Conservators.  Joint Managing Conservators means that two parents have equal decision making in a child’s life from medical, to psychological, to educational decisions as well as the ability to manage a child’s property, if there is property to manage.  When you hear that a parent is the “primary conservator” in a joint managing conservatorship, it deals with one thing and one thing only; the exclusive right to designate the child’s primary residence. 

The jury in the Sanders divorce trial ruled that Deion and Pilar are joint managing conservators of their daughter with Deion designating the daughter’s primary residence.  Deion is considered the “primary conservator” of their daughter in that he will determine where she will live primarily.  Texas law presumes that it is in a child’s best interest that a child’s primary residence be restricted to a certain geographic area so that each parent will have continuing contact with the children. 

In order to receive Sole Managing Conservatorship of a child, you must rebut the presumption that a Joint Managing Conservatorship is in the child’s best interest.   It is very difficult to rebut this presumption and you must show some form of child abuse, harm, or neglect or domestic violence in order to be awarded Sole Managing Conservatorship as well as demonstrating that it is in the child’s best interest for one parent to be the Sole Managing Conservator

What differentiates Sole Managing Conservatorship from Joint Managing Conservatorship is that the Sole Managing Conservator has sole decision making ability when it comes to all major decisions in a child’s life from medical, to psychological, to educational decisions as well as the ability to manage a child’s property, if there is property to manage.

Deion Sanders being named the Sole Managing Conservator of the two boys is very significant in that he will be making all major decisions regarding the children’s lives (as discussed above) and will not even be required to have Pilar’s agreement prior to making those decisions.  Deion will still have a duty to inform Pilar of these decisions but he will have sole decision making ability.  In order for the Texas jury to have made this ruling, the jury must have found that it was in the children’s best interest for Deion to have Sole Managing Conservatorship of the boys.

Stay tuned for my next blog where I will discuss possession schedules for parents in Texas and the Judge’s ruling on the Deion and Pilar Sanders’ respective periods of possession of their children.

 

Temporary Orders in Modification Cannot Change Custody

 Ruling prohibiting moving the children as temporary order in modification had the effect of changing the primary custody designation so was improper.

When a suit for modification of issues related to conservatorship is filed, temporary orders may only be granted in certain situations provided by statute. For example, a court may not change custody (primary right to determine domicile in joint managing conservatorship) unless it is necessary to prevent some immediate danger to the child. If the underlying order gives the parent the right to determine the child’s domicile without restrictions, the court in a temporary hearing upon modification cannot impose new restrictions, like a domicile restriction, because such would have the effect of changing custody. Or, at least, that’s what the Fort Worth Court of Appeals said on January 17, 2012. In re Strickland, 2012 WL 117614 (Tex. App. – Ft. Worth 2012, orig. proceeding), click here for a full copy of the opinion.

In Strickland, the mother was appointed joint managing conservator with the right to establish the primary residence of the children without restriction on the domicile. Father filed for modification, stating that the mother intended to move to Florida and seeking a temporary order preventing the move. The trial court judge restricted the mother’s residence to Denton County, Texas and counties contiguous to Denton County while the modification was pending. Mother sought mandamus relief from the Fort Worth Court of Appeals, which was granted.

The problem with Mr. Strickland’s situation was that he didn’t insist on a geographic restriction in the divorce decree. If he had, this whole dispute would have turned out differently. Take-away lesson: think of the possible consequences of the wording of the order before you agree to it, so you don’t regret it later.

 

Fathers Really Do Have Rights

Posted by Michelle May O'Neil on July 25, 2011

Like the gay rights ("Marriage Equality") movement, black civil rights movement, and feminist movement, the Fathers' Rights movement is grounded in constitutional rights and imperatives. It has grown out of the very real changes in men's traditional roles in Western society, and the current generation's more egalitarian attitude towards shared parenting, which has resulted in gender neutral custody laws in virtually every state of the United States. Despite the changing laws on the books, there is still a perception that there is a gender bias in family law, and that fathers are discriminated against in custody decisions.

As family law attorneys in Dallas, TX, we regularly see custody disputes first hand. Although we represent mothers and fathers in equal number, we are no longer surprised when fathers are awarded custody rights. Sole custody agreements are a vanishing breed in the family law practice. Today, most fathers we meet with are seeking at least some form of joint custody, whether it is decision making or shared parenting.

A semi-typical case where a change of custody to the father may happen could be when a teenager declares that he/she'd rather live with Dad. (Those cases are usually resolved pretty quickly -- in most courtrooms, teenagers get what they want.) Judges, law guardians, and forensic psychologists are more enlightened these days about the rights of fathers, and the rights of children to be raised by their fathers. The fact is that fathers who are active and involved in raising their children are almost always given the opportunity to continue that role post divorce.

The value of fathers cannot be denied. But neither can the economic incentives that play a major role in custody disputes. For every father that has a good faith motivation for seeking primary custody (he is more bonded to the children, or the mother is mentally ill or drug addicted), there is a father who hasn't seen his children in months but declares upon being served with divorce papers that he should have custody. After all, he can do as good a job as the mother, and so why shouldn't he receive child support?

Recently, Jacqueline Harounian, Partner at The Law Firm of Wisselman, Harounian & Associates, did a radio program about fathers' rights. Many of the callers were men who felt victimized by high child support payments, and harsh child support enforcement measures, including wage garnishments, and incarceration. While the Family Court can grant relief in limited cases, the truth is that the government is unyielding and unsympathetic to so called "deadbeat dads" who owe child support. The sad reality is that many of these fathers do not even have a relationship with their children. Statistics show a strong correlation between active and involved fathers and those who willingly pay child support. (It must be mentioned that the system is just as punitive to mothers who owe child support, and more and more, mothers are being jailed for contempt for violating custody orders.)

Advice to those fathers who are concerned about child support? If you are seeking financial relief from your child support obligations due to a change of circumstances (such as job loss, or illness) run -- don't walk -- to Family Court. Do not let arrears accumulate, because there is very little that can be done to address it retroactively. But more importantly, be an active and involved father for your children. Children need mothers and fathers. They need financial and emotional support from both parents. Raising children costs money --- lots of it. But the non-monetary rewards to both children and their fathers are incalculable.

Hat tip to Jacqueline Harounian for her May 13, 2011 post                                                                                                                                                                                           

So you want sole custody?? Part Two

In my previous post I talked about the various terms used in Texas courts regarding child custody.  I also stated that the best interest of the child is the first priority for any Texas court presented in a conservatorship and/or possession determination.  In this post, I'll continue our discussion by looking at the factors courts consider in determining what is in the best interest of a child (i.e., the Holly Factors). 

The first main category a court will assess is the parent's ability to care for the child.  Generally speaking the following seven factors are frequently considered:

  • Which parent will best provide for the child's physical, psychological, and emotional needs now and in the future?
  • Does either parent pose any physical or emotional danger to the child now or in the future?
  • Which parent will present the most stability for the child?
  • What are the parents' plans for the child?
  • What level of cooperation exists between the parents? 
  • What are the parenting skills of each parent?
  • Which parent was the child's primary caregiver before the divorce was filed?

The second main category to be assessed is maintaining family relationships.  Generally, the following six factors are considered:

  • The child's desires (if the child is 12 years of age or greater)
  • The geographic proximity of the parents and other family members
  • If divided or split conservatorship is requested, the court can consider what effect separation would have on the siblings
  • The extent to which each parent can encourage and accept a positive relationship between the child and the other parent
  • Whether any parent ever knowingly made a false report of child abuse
  • Whether there is a need for measures to protect the child from being abducted to a foreign country. 

The last main category deals with parental fitness.  In this category there are mandatory factors and optional factors the court considers.  The three mandatory factors are: 

  • Whether there is any credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by one parent against the other, a spouse, or a child
  • Whether there is any evidence of the intentional use of of abusive physical force by a parent against the other or any person under 18 years of age that is committed while the suit is pending or in the two years before the suit was filed
  • Whether there has been a commission of family violence

The following are optional factors for the court to consider as they relate to the parties to the suit:

  • Each parent's present fitness to care for the child (including recent past conduct that is a reasonable predictor of current fitness)
  • Whether either parent has a drug or alcohol problem
  • Whether either parent's sexual conduct renders that parent unfit to act as a parent (for example, if a parent has pornography that is accessible to the child)

It is also a comfort to a lot of our clients that the court can NOT consider the following factors: 

  • Martial status (although a parent's marital status cannot be used by itself to determine who should be appointed as the child's conservator, court's can consider a parent's marital stability)
  • Gender
  • Race
  • Religion (except if the religion requires the parent to engage in illegal, immoral or harmful activities).

Although this may seem like a short list of factors, there are several nuances to each factor listed.  Now that we have the basic terms down and an understanding of what the Holly Factors are, in my next post I'll discuss the presumptions that apply is conservatorship determination and how they impact a party's desire for "sole custody." 

 

 

So you want sole custody?? Part One

As a Dallas divorce lawyer, I frequently have clients that come into my office wanting “sole custody.”  Custody is a term that means different things to different people.  In this series of blog posts, I’ll explain how “custody” is determined in Texas.  The first post in this series will define the words Texas courts use in determining custody issues. 

In Texas conservatorship is the term that equates with custody.  Chapter 153 of the Texas Family Code sets forth the framework for appointing individuals as conservators and granting rights of possession and access to a child. 

There are two types of conservators: managing and possessory.  Managing conservators are further divided into two sub-categories, sole and joint.  A sole managing conservator is a person that is granted exclusive rights to make decisions for the child.  A joint managing conservator is one of two people who share the rights and duties of a parent, even if the exclusive right to make certain decisions (for example, the place of the child’s primary residence) is awarded to only one person.  A possessory conservator is a person who is designated by the court as having a right to possession of a child under specified conditions, and who is authorized during their periods of possession to exercise certain rights of a parent.  A very common misconception regarding joint managing conservators is that each parent must have equal periods of possession.  Also, a possessory conservator can exercise his or her periods of possession to the exclusion of a managing conservator. 

Now that we have the basic definitions down, we’ll look at how a court determines the rights and duties of parents and the periods of visitation to the child.  From the get go, it’s important to understand that the best interests of the child is the most important factor the court looks at when deciding issues of conservatorship, possession and access.  To establish a child’s best interests, parents usually are required to present evidence showing who can better serve the child’s interests. 

Approximately 30 years ago, the Texas Supreme Court identified a non-exclusive list of factors the court will consider in determining what is in the child’s best interests.  These factors are commonly called the “Holly Factors” because of the name of the case they were identified in.  Generally, the Holly Factors fall into three categories: (1) caring for the child; (2) maintaining family relationships; and (3) parenting skills. 

In the next post, I’ll write about the specific items courts consider in assessing the three main Holly Factors.

Standards to modify custody.

In a recent opinion by the Dallas Court of Appeals, the Court held the trial judge did not err when he did not apply a domestic violence presumption in assessing child custody and did not record an interview with a child in the office outside the court room.  In the Interest of S.E.K. & H.A.K., No. 05-08-00858-CV, --- S.W.3d --- (Tex. App. - Dallas, Aug. 28, 2009)

In S.E.K. mother and father were divorced and were initially appointed as joint managing conservators for the children.  Several years after his divorce, father filed a law suit with the aid of his lawyer seeking to modify the custody determinations provided in his divorce decree.  In response, mother filed a counter-suit also seeking to modify the custody schedule.  Mother complained to the trial judge that father shouldn't have primary custody of the children because of prior allegations that he sexually abused the kids.  The trial judge (from Dallas) was presented with testimony from both sides and their expert witnesses and ordered: (1) father has sole custody of one child; (2) mother has sole custody of the other child; and (3) visitation of the children has to be supervised.  Mother was unhappy with the trial judge's ruling and appealed.

On appeal, mother argued the trial judge committed error by not noting on the record the allegations that father sexually abused his children.  Additionally, mother complained that the trial judge erred when he did not make a record of his interview with the couple's child in his office just outside the court room.  Both of mother's complaints arose under Chapter 153 of the Texas Family Code (which deals with the initial determination of custody and visitation).  

The appellate court noted that this case was not an initial determination of custody, but rather it was a modification case.  Because the case sought to modify a prior custody determination, the Court said that Chapter 153 of the Family Code did not apply but rather Chapter 156 controlled.  The appellate court went on to state that the Texas Legislature placed different standards in Chapters 153 and 156 and because of this, the law mother relied on did not apply.  In a modification suit, the main issues are whether there have been material and substantial changes which warrant a modification in custody and whether the proposed changes would be in the best interest of the child.    The main issues to be determined in an initial custody determination are different than this and are reflected by the language of the laws found in Chapter 153.