As a parent, certain things seem to naturally evade you. However—unlike the car keys, your kid’s stuffed animal, and all of last year—one thing that’s a lot harder to misplace are your parental rights, even if you get divorced.
Parental rights are inherent to the position, and don’t end simply because you’re no longer a spouse. That being said, it doesn’t always mean you won’t have to share, because unfortunately, there are some things about childrearing that have to adapt, if both parents are no longer under the same roof.
The process of dividing parental authority isn’t always fun, however, by entering divorce negotiations fully appraised of both your rights—as well as the expectations of the court—it doesn’t necessarily have to be hard, either.
Here’s what you need to know about parental rights in Texas.
Parental Rights: The Basics
In Texas, “parental rights” refer to the broad range of authority and powers that a parent has to both dictate how their child is raised, and to be an active participant in that process. And while it is (technically) possible for you lose these rights, fewer relationships are held in higher regard by Texas courts than that between a parent and child.
When a couple divorces, these rights must be divided between spouses. To this end, a couple can either decide the terms of their own parenting plan (for example, through an uncontested divorce, mediation, or collaborative divorce), or a court can make these decisions for them, through formal court trial.
So long as the term meets the basic standard of law, judges are almost always willing to sign off on an agreement the couple has negotiated between themselves.
Right to Possession and Access
The Texas Family Code states that parents have the right to “possession and access” their child, which is a fancy way of saying they have a right to have physical contact, or “physical custody.” In Texas, this right of custody is commonly known as “conservatorship,” and, upon divorce, these powers can be distributed between parents as either joint or sole.
As a general rule, it’s rare for Texas judges to grant conservatorship rights solely to one parent. Instead, courts heavily favor joint arrangements, and will almost always grant both parents some kind of physical access to their child—even if it’s just visitation. The only time they would not, is if doing so would cause the child harm, such as with abuse or domestic violence.
Right to Make Decisions
Parents have an inherent responsibility to take care of their child, but this isn’t just a responsibility, it’s a right—and that’s a big distinction. This means that not only are you obligated to care for your child, but that, in fact, no one except you (and the child’s other parent) are even allowed to make important decisions about how your child is raised.
Some of these important decisions might include what religion(s) the child is exposed to, where the child goes to school, and what kinds of medical procedures they should be allowed to undergo. In other words: pretty important stuff.
In a divorce, this type of authority is often called “legal custody,” and is almost always divided exactly equally between parents.
Possession and decision-making authority are the two biggest powers we typically think of during divorce, but parents actually have more rights than just that. Some of them include:
- The right to receive information from the other parent, such as health, education, and welfare updates, and to consult professionals in these matters;
- The right to access medical, dental, psychological, and education records;
- The right to attend school activities;
- The right to be included as a child’s emergency contact; and,
- The right to manage a child’s estate (if applicable).
Best Interest of the Child Standard
How the court divides parental powers usually comes down to an analysis of the individual factors. And, while judges have a lot of discretion to interpret these situations, all decisions are ultimately driven by the child’s best interest.
This mentality is encompassed by the best interest of the child standard, a legal mandate that governs every decision involving minors—including ones that aren’t divorce related. Here, courts are required to implement the outcome that best serves not only the child’s short-term happiness, but their long-term health and well-being, as well.
In a heated and emotionally charged divorce arena, this sometimes means that parents won’t get exactly what they want (since it’s too easy for a parent’s individual bias to skew “what’s best,” with “what’s wanted.”) Instead, the court focuses on the child’s needs, and will divide parental rights accordingly.
That being said, this standard assumes that a child’s best interest is served by having a relationship with both parents. As a result, it’s rare for parental rights to be completely stripped, and it generally doesn’t happen unless absolutely necessary to serve the child’s best interest.
So, worried parents can rest easy knowing that—even if you don’t get the exact arrangement you want—your child’s best interest is at the forefront of any decision the court makes.
Biological parents are not the only individuals afforded these essential parental rights. Parents who have adopted children also have this authority.
Adoption is the process of transferring parental rights to an adult who is not the child’s biological parent. This often happens with step parents who adopt their spouse’s child, but can also occur between strangers, or even grandparents. Once finalized, adoption is permanent and has far-reaching effects, altering the lines of inheritance, and even requiring the child to have a new birth certificate.
In the eyes of the court, there is no difference between the parental rights of biological, versus an adopted parent.
Establishing Paternal Rights
When a child is born inside a marriage, courts presume the child belongs to the individual spouses in that partnership. However, if the couple isn’t married, the child’s parentage is not assumed. In these situations, unmarried fathers will need to establish paternity, before they are afforded full parental rights.
The easiest way to do this, is for parents to sign and file an Acknowledgement of Paternity, which, once complete, will give the father will full parental authority under the law. In more extreme circumstances, it might necessary for a father to file a suit of parentage with the court, before they are allowed to exercise these parental rights.
If the father refuses to acknowledge paternity, this will not relieve him from the financial obligations of supporting his child. Once a DNA test is complete, the court will require child support, whether or not the father and mother want it.
In situations where the mother is married, and the baby’s father is not her spouse, the husband will need to file a Denial of Paternity before the father can claim parental rights. If the husband refuses, a case can be opened with the court to establish the child’s true paternity.
Parental Rights Attorneys in Texas
Being a parent is as challenging as it is rewarding, and for couples on the brink of divorce, it’s important to understand that the right to participate in this journey doesn’t end with marriage. It just changes a little.
If you have further questions about parental rights, and how they might be affected by life situations like divorce, we hope to hear from you. Call the Neal Ashmore team today at (972) 436-8000, or schedule a consultation online, and let us help protect your parental rights.