In both divorces and child custody cases (called Suits Affecting the Parent Child Relationship–SAPCRs), it is quite common for the parents involved to be unable to agree on a visitation schedule. In those instances, the question arises: how will the judge decide who gets custody of the children.
Two main principles form the foundation of how judges look at this issue: 1) the best interests of the child; and 2) the presumption that, unless proven otherwise, it is in the best interests of the child to have both parents involved in parenting the child.
Thus, in most cases, the court will name both parents as joint managing conservators. This means that both have broad rights and responsibilities relating to the child. While the court will typically name one parent as the parent who has the exclusive right to choose where the children live, both parents share many of the other basic duties and rights relating to the upbringing of the child.
In order to determine who gets the primary custody of the child, the court will look at a variety of factors, including, but not limited to: the living conditions of both parents (e.g. does one parent have a home, while the other is living with friends?); parenting styles (e.g. is one parent more likely to be physically or emotionally abusive?); the work conditions of both parents (e.g. is one parent making a stable income while the other has bounced between jobs?); the parents’ addictions or legal problems (e.g. is one parent sober while the other struggles with alcoholism); and the types of people that live with each parent (e.g. is one parent living with a boyfriend/girlfriend that would be a bad influence on the child?).
In most instances, the court will name the two parents as joint managing conservators; one parent will have primary custody (meaning they have the right to choose where the child lives), while the other parent receives a visitation schedule. In many instances, the court uses what is called the Standard Possession Order, which gives the non-possessory parent visitation with the child on the 1st, 3rd and 5th weekends of the month (in addition to Thursday visits between 6-8 pm, certain holidays, and longer for one month during the summer break).
However, if one or both of the parents is deemed a risk to the child (e.g. because they have a drug problem, have a history of domestic abuse, or another reason), the court may decide to only allow that parent to have supervised visits (e.g. supervised by the other parent, a neutral third party, or at a courthouse/other public place) or not allow that parent to see the child at all.
In most cases, it is best for the parties to see if they can agree on a visitation schedule that will work for both parents and allow the child to have a strong relationship with both parents. Where such an agreement cannot be reached, the judge will use the factors described above (among others) to determine how to make this important decision.