Child Custody Cases
Making conservatorship decisions is always the most painful part of divorcing. Being clear about your options from the start may make tough decisions easier.
Types of Conservatorship
- Legal Versus Physical Conservatorship:
Legal Physical Legal conservatorship is the right to make decisions about your child, including:
- Medical issues
Physical conservatorship is having the child physically present with you.
- Sole Versus Joint Conservatorship:
Sole Joint With sole conservatorship, you alone have legal and physical conservatorship of your child. In a joint conservatorship arrangement, you and your ex-spouse share legal and/or physical conservatorship of the child. This might mean:
- Having the child spend a significant amount of time with each parent
- Spending weekdays with one parent and weekends with the other parent
- The child spending most of his or her time with one parent and visiting with the other parent on a regular schedule
- The parents moving in and out of a home where the children live (called "nesting")
Most states require divorcing parents to have a written plan outlining:
- Where the child will live
- Details of when the child will be with the noncustodial parent
- Who will make parenting decisions and how
- Where the child will be during holidays and school vacations
- How vacation time with each parent will be determined
Factors In Determining Conservatorship
If you and your spouse cannot agree on a conservatorship arrangement, the court will likely make a decision based on the "best interests" of your child.
Factors the court will consider in deciding what's in your child best interest include:
- Who is currently and has been the primary care provider for the child
- The mental and physical health of both parents
- Special needs such as medical care and psychological counseling your child may have
- The work schedules and availability of each parent
- Where any siblings will live
- The support systems (family and friends) of each parent
- The preference of an older child, such as a teenager
- The cooperation level between parents
- Any history of domestic violence between the parents
What To Expect In Conservatorship Litigation
Laws and procedures vary by state, but you should expect the following in a conservatorship lawsuit:
- One of the parents files for a divorce and asks the court to decide conservatorship
- Both parents file paperwork detailing each parent's plan for where the child would live, visitation schedules, and how decisions concerning the child would be made
- The court will likely appoint an investigator, sometimes called a "conservatorship evaluator" or "guardian ad litem," to interview the child, parents and potential witnesses such as family, friends and teachers, and make recommendations to the court regarding conservatorship
- The parents may be required to go to mediation, where a neutral third party will help the parents work out an agreement without going to court
- The parents may be required to complete a short parenting course regarding parenting after a divorce
- Attorneys for both parents may take "depositions" - formal questioning of witnesses under oath- to prepare for trial
- Both parents will likely have to answer formal written questions under oath, called "interrogatories"
- There will be a series of motions and hearings before the actual trial, to determine temporary conservatorship and child support
- At trial, the judge will hear from both parents and witnesses
- The judge may make his or her decision at the conclusion of the trial, or may wait and send a written decision days or weeks after the trial has ended
Fighting over your child is expensive, time-consuming and emotionally damaging to everyone involved, especially your child. But knowing your rights as you begin the process make help you make better decisions.
It is essential to hire a competent local lawyer who specializes in conservatorship litigation to help you in this process.