Parenting Plans in Texas Family Law

Introduction

The 79th Texas Legislature made changes to the Texas Family Code in the 2005 legislative session. The introduction of parenting plans is among the many changes in Texas family law that took effect on September 1, 2005.  However, most family law attorneys in Texas are still adjusting to the new terminology and the use of parenting plans.

Parenting plans essentially replace the Standard Possession Order and the terms previously associated with child custody and child visitation in Texas. “Parenting plan” means a temporary or final court order that sets out the rights and duties of parents in a suit affecting the parent-child relationship and includes provisions relating to conservatorship, possession of and access to a child, and child support, and a dispute resolution process to minimize future disputes. Texas Family Code §153.601.  Parenting plans are the result of an effort by legislators to update the outdated terminology associated with the conservatorship of children in Texas. The use of parenting plans and parenting coordinators in suits affecting the parent-child relationship should assist in promoting the best interest of children and in helping litigants resolve their issues related to parenting.

Child custody, support, and visitation are typically the most contentious issues involved in a divorce. Once these issues are resolved, the parties usually become more agreeable on issues relating to community property and separate property. Some parties may find it helpful to mediate a parenting plan with a private mediator who specializes in family law early on in the divorce, because it is normally easier to resolve the property issues after the custody and parenting issues are resolved.

Texas family law attorneys are still adjusting to the statutory changes in Texas family law and some are still resisting the use of parenting plans and parenting coordinators. Under the new provisions of Chapter 153 of the Texas Family Code and the recently adopted Subchapter J, every temporary or final order in a suit affecting the parent-child relationship (SAPCR) must include a parenting plan. A parenting plan is, in fact, “a temporary or final court order that sets out the rights and duties of each parent involved in a [child custody or divorce action], and includes provisions relating to the conservatorship, possession of and access to a child, child support, and a dispute resolution process to minimize future disputes.” Texas Family Code §153.601(4).  The parties are required to submit a proposed parenting plan, and the actual parenting plan is an order of the court.

Parenting plans have become popular in many other jurisdictions outside of Texas, and there are currently over 39 other jurisdictions which require parenting plans in child custody and domestic relations matters. Parenting plans have actually been around for many years in Texas; however, Texas family law attorneys simply used different terminology for referring to agreements between the parents in divorce and custody cases.

Requirements of a parenting plan

Parenting plans spell out the legal obligations, responsibilities, rights, and duties of parties involved in divorce and child custody cases. Chapter 153 of the Texas Family Code requires that all parenting plans: 1) establish rights and duties of each parent with respect to the child; 2) minimize the child’s exposure to harmful parental conflict; 3) provide for the child’s changing needs as the child grows and matures, in a way that minimizes the need for further modifications to the final parenting plan; 4) provide for a dispute resolution process or other voluntary dispute resolution procedures, before court action, unless precluded by section 153.0071; and 5) include a verified statement that the proposed parenting plan is proposed in good faith and is in the best interest of the child.

Parenting coordinators

One of the more controversial amendments to the Texas Family Code was the advent and required appointment of parenting coordinators. A parenting coordinator is an “impartial” third-party appointed by the court to assist the parties in resolving issues relating to parenting and other family issues arising from an order in a [SAPCR].”  Tex. Fam. Code §153.601(3).  Some Texas family law practitioners are concerned about the broad discretion of the trial court in the appointment of parenting coordinators, and find it very difficult to prevent the appointment by use of objections. Under current Texas Family Code §153.605, the court or a party may not appoint a parenting coordinator unless the court specifically finds that 1) the case is or is likely to become a high-conflict case, or 2) such appointment would be in the child’s best interest. A high-conflict case is defined as one in which the parties demonstrate a pattern of 1) repetitious litigation; 2) anger and distrust; 3) difficulty in communicating about and cooperating in the care of their children; or 4) other behaviors that in the discretion of the court warrant the appointment of a parenting coordinator.

Legislation has been proposed that will limit the subjective definition of a high-conflict case by requiring proof that a case actually is a high-conflict matter at the present time, and not simply one that is likely to become a high-conflict matter. The new legislation would prevent the courts from appointing a parenting coordinator unless the court makes a finding that a statutory element of a high-conflict case is present, rather than parties merely demonstrating a “pattern” of one of the elements.

Another controversial issue concerning the appointment of parenting coordinators is the issue of confidentiality. The current law in Texas prevents parenting coordinators from being compelled to produce work product from parenting coordinating appointments, being required to disclose the source of any information, and submitting into evidence anything other than that which is required under §153.608. Section 153.608 requires that a parenting coordinator submit a written report to the court and the parties as often as ordered by the court, which may only provide an opinion regarding whether the parenting coordination is succeeding and should continue.

Conclusion

The purpose of parenting plans is to decrease the reliance on the courts for resolving disputes concerning child custody, visitation, support, and obligations. Litigation over family law matters breeds animosity among the parties, and clogs the family courts’ dockets. It is also very expensive to go back to court every time a dispute arises. The Texas parenting plan legislation should promote more agreements among parents and provide court orders that will accommodate the changing needs of children affected by divorce and child custody lawsuits. The new legislation should also “encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.”  Tex. Fam. Code §153.001(3).  Furthermore, agreed parenting plans will allow for the broadened use of alternative dispute resolution methods, such as mediation, to alleviate the backlog of enforcement and contempt matters pending in the family courts, and will help parents resolve their disputes without going back to court every time a conflict arises.