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Child Custody & Visitation
Child Custody Attorneys
When parents divorce or separate, custody of their children is often the most critical and disputed issue they face. What is meant by custody of children? Custody of children refers to the following basic parental rights::
- Parent’s right to make decisions about the child’s life
- Parent’s right to have the child live with him or her
How is Custody determined?
Texas law states that custody should be determined by what is in “the best interest of the child.” But very often, parents fail to agree on a custody plan that they both feel is in the best interest of the child. If this happens, then the courts will determine what custody arrangement is in the best interest of the child, often by examining each of the parents and a number of factors. Some of these factors include, but are not limited to the following:
- Financial security of each parent
- Neglect and Abuse by either parent towards the child
- Drug and Alcohol dependency by parents
- Who HAS BEEN the primary caretaker for the child
- What have been the living arrangements for the child
- Child’s Preference, if the child is of sufficient age, typically 12 years old
- Special Needs of Child. Does child have special needs (physical, medical or psychological) that one parent is better equipped to handle
This is not an exclusive list. The court may consider any other factor that is relevant in determining what is in the best interest of the child.
How Child Custody battles can impact the family?
Child custody disputes between parents can be very stressful. Often, this is because it can determine which parent gets the right to make decisions for the child’s culture including where they go to school, their religion and how they are disciplined (Legal Custody). Child custody also determines which parent the child will reside with (Physical Custody).
The best case scenario is that the parents work together and make the decisions on how to split the child custody. Unfortunately, this is not always the case and the court must step in and make a determination based on what is in the child’s best interest.
Our firm works closely with our clients toward resolving their custody disputes with two goals in mind:
- Advocating on behalf of our client to meet our client’s needs
- Maintaining a respectful relationship, whenever possible, for our client’s families
What are the two most common types of legal custodies in Texas?
The Texas Family Code identifies two types of custody:
- Joint Managing Conservatorship
- Sole Managing Conservatorship
If the parents are Joint Managing Conservators, that means they will have right to make decisions concerning the child’s medical decisions, religion, education, and how they are disciplined. In most cases, Joint Managing Conservatorship is assumed by Texas courts to be the best arrangement for divorcing parents.
If one parent is a Sole Managing Conservator, he or she will have more exclusive rights to make decisions concerning the child’s medical needs, religion, education and how the child is disciplined.
How is the physical custody (Visitation) of a child divided?
The physical custody of the child is most often governed or based on the Texas Standard Possession order. The main effect of this possession order is that it provides weekend visitation for the parent with whom the child does not regularly reside. These weekends are typically the first, third, and fifth weekend of the month.
Parties are allowed to agree on how the physical custody of the child shall be divided and the Texas Standard Possession order is only considered when the parents can not work together and agree on a visitation plan.
Is a Custody decision permanent or can it be modified?
There are no permanent decisions regarding custody arrangements in Texas. People and their circumstances change. The court provides a mechanism for you to petition the court to make changes to your custody and visitation rights. In many areas, this is known as Motion to Modify Parent-Child Relationship.
Does my child get to decide who they want to live with?
In Texas, your child does not get the final say in where they live, but depending on the circumstances, their preference is considered. If the child is 12 years old or over, they will be allowed to give the court their opinion regarding which parent they would rather live with. Often this is done by the child meeting privately with the Judge in Chambers.
Regardless of what a child has to say about their preferences, a judge may rule in favor of the opposite party. Sometimes a judge will decide that the thoughts and wishes of a child mixed up in a Child Custody battle are actually not going to be in the child’s best interests. Judges also know that children may not be mature enough to properly evaluate which household is in their best interest. Kids can be kids and sometimes they prefer to live with the parent who has less “rules” or does not make them do chores. The maturity of the child is a big factor for the Judge to evaluate. Remember, deciding where the child should live is more about what is in the best interest of the child and less about what the child wants.
For parents of children under the age of 12, their options are not as concrete and the court has more discretion on whether to consider the child’s wishes. To get the Judge to consider these children’s preference, a couple of options exist including:
- Ask the Judge to interview the child. When the child is under 12 years old, there is no absolute right for the child to give his or her preference.
- Ask the Judge to assign or approve of a counselor or amicus attorney to interview the child to get the child’s preference.
What happens if my spouse wants to relocate geographically with my child after a divorce?
If you are concerned that your spouse may want to relocate half way across the world after gaining Child Custody and that you will then not be able to see your child for years on end, it is essential that you speak up before any Divorce or Child Custody orders are signed.
In Texas, the key is to get a residency restriction clause in your Final Decree of Divorce or Child Custody Order (commonly known as Order in Suit Affecting Parent Child Relationship). In many counties, it is common practice that upon one parent’s request the parent that establishes the residency of the child is required to live in either the county of jurisdiction and any county contiguous to the county of jurisdiction. To illustrate, consider the following example:
Mom and Dad live in Austin at the time they file their divorce. Mom wants to move to New Jersey and take the children. Dad requests that a domicile restriction clause be included in the Final Decree of Divorce ordering that Mom may only reside in a certain county. The Court agrees with Dad. The result is that Mom will not be able to move to New Jersey. If she does, she could forfeit her right to establish the residence of the children. Mom is permitted to continue to live in a certain county and may move anywhere else within the county or to any other county that touches the original on the map.
The important thing you must do is get the domicile restriction into the Child Custody or Divorce order, or there will be little that the court can do.
My partner was violent…how does this affect Child Custody and Child Visitation decisions in court?
Unfortunately, domestic violence is a common reason for a failed marriage. Our law firm has dealt with many cases where the reason for filing for a divorce stems from the fact that at least one of the spouses has been physically or emotionally abusive towards the other.
Naturally, to put your mind at rest, domestic violence of any kind is a very serious factor that the courts in many counties consider when determining the outcome of a legal matter involving Child Custody and Child Visitation rights. Despite what the child says (even if they are 12 years old or older), the law always needs to act in the best interest of that child. Knowingly placing them in an abusive environment would not be acting in a child’s best interests from any angle.
Evidence of domestic violence in a Child Custody battle can either work heavily in your favor or heavily against you. If you are a victim of domestic abuse or falsely accused of committing domestic violence, it is imperative that you get immediate assistance from a competent attorney.
Victims of family violence have many legal options available to them and their children including protective orders and supervised visitation.
Do I have to be married to file for Child Custody or to request better Child Visitation rights?
The courts in many counties provide a mechanism to either establish the parent-child relationship or modify an existing order concerning the parent child relationship regardless of whether you are married or were ever married to the other parent.
It is known as Suit Affecting Parent Child Relationship (SAPCR). After filing a petition with the court, you can address all custody and visitation relating to the child including, but not limited to the following:
- Establish the Parent-Child Relationship. Often in situations when parents are not married, and the father has not signed an Acknowledgement of Paternity form, the father will have no custody or visitation rights. In this situation, either parent may file a SAPCR petition to establish the father as legal parent of the child.
- Address all custody issues including which parent makes life decisions for the child or whether they share the responsibility.
- Establish a visitation schedule so that both parents have an appropriate amount of access to the child based on the parent’s situation.
- Establish and order one parent (typically the non-custodial parent) to pay child support for the benefit of the child.
Free Case Evaluation with a divorce attorney committed to obtaining results for you.
Contact us as soon as possible to discuss the course of action that is available for you to take and, whether you are married or not, you will then be able to begin getting the ball rolling. In this way you will be able to begin living peacefully and worry free with your child, knowing that they will always be a part of your daily life and within your care.
The initial consultation is free!