- April 21
- Evans & Herlihy
- Family Law
If you’re going to be involved in a child custody dispute, you may not get custody, so you may ask, what legal rights does a non-custodial parent have? If this happens to you, unless there is evidence that you’ll endanger your child, you should have access to and spend time with your child. In Texas, if parents can’t reach an agreement about their rights to their children, a judge will decide. The most important thing a judge will think about is making a decision that reflects and promotes your child’s best interests.
Texas uses legal terms related to child custody that are different than those used by other states. The Texas terms aren’t “custody” or “visitation.” The parent with the legal right to make important decisions about the child is a “conservator.” “Access” is time a parent has with a child. Physical custody is considered “possession” in Texas.
One or Both Parents Can Have Conservatorship
When you want to know what rights a non-custodial parent has in Texas, you may instead consider what rights the non-conservator parent has. A judge considers several factors when deciding “conservatorship,” which includes the rights to inquire, participate in, and decide issues such as your child’s:
- After-school activities
- Religion (including what the child learns and practices)
- Legal needs.
Given the wide range of decision-making powers a conservator has in Texas, a judge weighs several factors in making the determination about which parent can decide upon major parts of their children’s lives. When considering conservatorship and whether one parent will have it or it will be split, the judge will look at the following factors:
- The ability of the conservator to care for the child
- The ability of the conservator to provide a stable environment
- The child’s emotional and physical needs
- The child’s age and preferences
- The parents’ health
- Any history of child abuse or neglect.
What can’t be considered are the parent’s marital status and gender.
How Does a Judge Decide If a Parent Should Have a Conservatorship or Not? What Kinds of Conservatorships Might a Parent Get?
In terms more familiar to most, the concept of joint custody is called a “joint managing conservatorship” (JMC) in Texas. Sole custody is termed “sole managing conservatorship” (SMC). Here are the elements of each type of conservatorship:
Joint Managing Conservatorship (JMC):
- Both parents have the rights and responsibilities of a parent.
- A judge will state which responsibility each parent has separately, as well as the rights they share jointly.
- One parent can receive child support.
Sole Managing Conservatorship (SMC):
- One parent makes important decisions for the child, including primary residence, medical treatment, and education.
- The parent with SMC receives child support.
- If one parent has SMC, the judge will have to decide what access the other parent will have.
As in any case involving parental involvement in a child’s life, the child’s best interests are at the core of any decision a judge makes. Having both parents in a child’s life is usually best, so JMCs are the preferred arrangement. SMCs are normally awarded if there’s evidence of neglect, domestic violence, or abuse by the other parent.
In situations where a child’s well-being is in danger, Texas law is very clear. It states that there cannot be a JMC if there is credible evidence of “a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault…that results in the other parent becoming pregnant with the child.”
In such cases, the non-custodial (non-conservator) parent has few legal rights to make decisions about, and perhaps to have much time spent with, their child.
A Parent Without the Rights of Conservatorship Should Have Access to the Child
Possession orders spell out the parent’s rights for the time spent with a child. If a parent has a possessory conservatorship, they have the right to visit and have access (or time with the child). However, the parent may not be able to make legal decisions for the child.
Usually, courts want children to have a close relationship with both parents, but a judge may restrict a parent’s access and ability to decide issues for the child.
A parent may decide that he or she is unwilling or unable to take on conservatorship’s legal responsibilities and just wants time with the child. If the issue is litigated and a parent is found unfit or unable to properly care for the child, even on a part-time basis, the other parent will have SMC.
In a situation like this, the non-custodial (non-conservator) parent will still have obligations to the child. Even though nearly all of this parent’s rights are taken away, the parent will pay child support.
How a Non-Custodial Parent Can Maintain the Right to Be with Their Child
A parent can have access to a child if it’s in the child’s best interests and allowed by law.
In a child custody case, the judge will decide the amount of access a parent has to a child, whether the parent will have possession of the child, and under what circumstances. The judge will give weight to the parents’ wishes or an agreement they might reach. In addition to access, the parent also has the right to know the child’s location.
Access by a parent may not be allowed if the evidence shows …
- A history or pattern of family violence two years before the custody matter was filed or while it was litigated, or
- The parent engaged in a criminal offense that caused a victim to become pregnant.
A parent can have access to a child if a court …
- Finds that access won’t endanger the child’s physical health or emotional welfare and would be in the child’s best interest, and
- Creates a possession order that will protect the child’s safety and well-being and protect anyone who has suffered family violence committed by the parent.
When access is allowed, it can still be restricted in some circumstances. This is to protect the child while allowing some time with the non-custodial parent. There are several different rules that could impact how, when and where a parent visits, or has “access” to their child. These include:
- Time with the child could be supervised by a person the court deems capable.
- The child and parent would be in a neutral, protective setting.
- The parent can’t drink alcohol or use a controlled substance 12 hours before seeing the child.
- The parent attends and completes a battery intervention and prevention program prior to visits.
Legal Rights of a Non-Custodial Parent in Texas
What Legal Responsibility Does the Non-Custodial Parent Have?
If you have a JMC, but you don’t have possession of your child or just have access, you have all the legal rights and responsibilities under Texas law and your court orders. Duties in court orders vary. Generally, you’re obligated not to neglect or harm your child. You must also comply with court orders specific to your child custody arrangement.
How Can a Non-Custodial Parent Lose Visitation Rights?
If you violate the law or court orders, you can lose access to your child. If your child suffers abuse, harm, or neglect while under your care, your rights may end. There are other times that a judge can take access away from you, as well. If you are a non-custodial parent, you could lose visitation rights if you …
- Are hospitalized for a long time
- Suffer debilitating physical or psychological conditions
- Use illegal drugs
- Are intoxicated when you see your child
- Pose a threat to your child
- Are sent to jail.
If You Are Concerned about Your Non-Custodial Visitation Rights, Talk to a Child Custody Attorney
What legal rights does a non-custodial parent have? How can a non-custodial parent lose visitation rights? What legal responsibility does the non-custodial parent have? These are all questions that the Evans & Herlihy Law Firm addresses regularly. We’ve helped many parents face these issues, and we can help you, too.
We will make your custody case a priority by providing you with personal attention and advice through our child custody lawyer. We will make every effort to resolve your case without going to court. If that fails, we will be prepared for trial and will aggressively fight for you and your children. You can have a free consultation so we can talk about your situation. We will explain how the law may apply and discuss your best options.
Putting off this decision to get legal assistance may make your situation worse. Call us at (512) 732-2727 today so you can get the help and advice you need.