Category: Conservatorship

Father and child enjoying time together

Can a Father Regain Child Custody?

Posted on | by Jeff Rodriguez | Leave a Comment on Can a Father Regain Child Custody?
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Father’s and Their Children

Divorce is stressful. But the pain of seeing your marriage end is nothing in comparison to the impact of losing custody of your children. To have a judge tell you that your kids would be better off living with someone else is truly gut-wrenching. Can a father regain custody of his children? Yes. It isn’t easy, but it can be done, and here are some guidelines to help you. 

We’ll start by explaining some basic terms. Most people think of “custody” in the sense of who has the kids. That’s correct, but in fact, it’s only half of the story. 

Physical custody refers to the children’s primary residence

The parent who has the children most of the time is known as the custodial parent. The other parent, who probably has visitation rights, is the noncustodial parent. 

In other words, if the parents have Joint Legal Custody, both have the right to be involved in making decisions about the children’s schooling, medical care, and other issues. 

What Does Conservatorship Mean?

People get confused because it is not unusual for the court to set up separate legal and physical custody arrangements. In Texas, when discussing “custody,” the courts use the word conservatorship.

For example, the judge sometimes awards the parents joint legal custody,  but only one parent will get sole physical custody. And occasionally, the court will award one parent sole legal and physical custody. 

You Have the Right to Appeal the Court’s Child Custody Decision

In Texas, family law courts are required to make custody decisions based on what they believe is in the best interests of the children. That may sound appealing at first—until you realize that what a judge thinks is “best” for the kids may not seem completely unfair to you. 

After the court has finalized your divorce, you have 30 days to appeal the ruling. (This applies to custody decisions and any other rulings.) If you wish to appeal the court’s decisions, we highly recommend you get the assistance of an experienced Texas divorce attorney. Also, be aware that neither party can remarry for 30 days after the divorce is finalized. 

A Father Should Make Sure He Really Wants to Regain Custody

A father needs to be prepared to accept more than just financial responsibility if he is seeking sole custody of his children.

Before you decide to take on the fight to regain custody, we suggest one thing: Make sure this is really what you want. Are you wanting this because the court’s ruling hurt your pride? Are you hoping to “get back” at your ex?

These are normal emotions, but they are not good reasons for a parent to try to regain custody of the kids. The judge took them away from you because he or she believed it was in the best interest of the kids. You should want them back for the same reason. 

Start by Looking at Your Mistakes if You are a Father Seeking to Regain Child Custody

If a father wants to regain custody of his children, he should start not by looking at the court, but by doing some honest self-reflection. Where did you go wrong? There are four main reasons why you may have lost custody:

  • Drug and/or alcohol abuse
  • Child abuse or neglect
  • Domestic violence
  • Violation of a previous court order

As you can imagine, these are serious offenses. It will not be enough just to ask the judge to overlook them.  

A Father Usually Needs the Help of an Attorney to Regain Custody of His Children

You may be aware that it is possible to end your marriage without hiring a divorce attorney. That approach can work for some couples, but for a father to win back custody of your children, he probably will need to hire a family law attorney. These cases can get complicated, so we recommend finding one who is experienced in custody cases and has a track record of success. 

A related note: If you have been wrongly accused of child abuse or another offense, it is particularly wise to consult with a skilled Texas family law attorney. 

To Regain Custody, You Will Need to Request a Court Re-evaluation

A family law attorney can help you request an in-home Custody Evaluation. This evaluation is usually conducted by a licensed social worker, therapist, psychologist or psychiatrist. The evaluation is based on the guidelines outlined in Section 107.101 of the Texas Family Code. The evaluator will then submit a recommendation or written report to the court. 

As you might guess, if you are going to have your case re-evaluated, it’s essential to have a good home. This does not mean you have to have a large, expensive house—only that you can provide a home that is clean and safe. You also don’t need to have a home stuffed with toys. Learn more about the Tarrant County Custody Evaluation process. 

While You Are Trying to Regain Custody, Be Sure to Follow any Court Orders

When a father is trying to regain custody of his kids, it’s important to avoid any big mistakes. 

One of the most basic things you can do to improve your chances is to follow the court’s orders. For example, don’t take your kids out of town if the judge has told you not to. Conversely, if the court has ordered you to get treatment for drug addiction, attend parenting classes, or make child support payments, do it. 

You also need to be very careful about your activities and who you spend time with—especially romantic partners. Keep in mind, if you are a parent trying to regain custody of your kids, your ex probably is trying to hang on to them. It’s not enough to think that you are the better parent—you have to demonstrate it to the court.

It Takes Time for a Father to Regain Custody of His Kids

The time spent waiting for the court to make a decision can seem like forever. But courts can move slowly, and with the pandemic going on, there may be an even longer delay.

Therefore, it’s wise to be patient. It’s also wise to be productive. Make sure you spend as much time with your children as you are permitted to have, and make sure that time is meaningful. Don’t just meet the court requirements of the court begrudgingly, try to exceed them. And make every effort to cooperate with your ex in a sincere and respectful way. 

Speaking of your ex, here’s one more thing to consider: Do you have to have sole custody? Would you consider accepting joint legal and physical custody? If a father who wants to regain custody of his children is open to compromise, he may have more success with his ex—and with the judge. 

You Don’t Have to Go Through It Alone

Child custody cases can be complicated and emotionally draining. If you need a Texas family law attorney to help you with your custody case, Sean Lynch is here to help. We are experienced divorce lawyers who can serve you efficiently, compassionately, and affordably. Contact us today to schedule a no-cost 30-minute case consultation, 817-668-5879. Because even if your marriage has come to an end, your children’s future is just beginning.

Who Gets the Kids When Domestic Partners Split?

Posted on | by neal | Leave a Comment on Who Gets the Kids When Domestic Partners Split?
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The number of custody disputes between people in a domestic partnership is on the rise. We encourage you to know your rights about domestic partners’ custody.

If you choose to forgo marriage, you’re far from alone these days. The courts are seeing more cases involving domestic partners who are ending relationships. Some domestic partnerships or civil unions may arise as an alternative to same-sex marriage in states where same-sex marriages are not recognized. Just like married couples, domestic partners buy property and have or adopt children together.

Image of a Domestic Partnership document and a gavel.
A domestic partnership is different from a common-law marriage. Photo by hafakot

Domestic partnership arrangements do not function as an alternative to marriage. In fact, many people worry that their relationship might be categorized as a common-law marriage or a civil union. You’ll need a domestic partnership agreement to keep things clear and formalize benefits between two parties. You can use this legal document to define your relationship as unmarried, thus avoiding legal entanglement when couples part ways. Check with your attorney whether your county formally recognizes domestic partnership agreements that you enter into.

However, there are some complex issues that can arise in a non-married relationship such as a domestic partnership when a couple separates.

Child Custody and Domestic Partnerships

In Texas, child custody in a domestic partnership is cut and dry. Your agreement for a partnership doesn’t establish paternity, custody, or child support for children.

If you had your child before entering the partnership, custody falls to you. The same is true for children that a couple adopted together. The only way to make both partners legal parents is for the other person to adopt the child. 

You’ll need to involve a judge if your domestic partnership is ending and neither parent is a legal guardian. If one of the parents did not legally adopt the child and wishes to retain custody, then you’ll need an expert to testify. That expert will advise the courts on what is in the best interests of the child when the court is reviewing the custody issues between domestic partners.

However, child custody can become one of the most complicated issues in separation if the other person is the legal parent and you want parental rights.

Who Gets Child Custody By Default In Domestic Partnerships?

For unmarried couples in domestic partnerships, Texas family law will assume that the mother automatically has legal and physical custody of a child from birth. This happens even if the father’s name is on the birth certificate.

Physical and legal custody are the two types of child custody. Having physical custody means that the child will reside with you while having legal custody means that you have the right to make important decisions regarding your child.

However, a father can establish parental rights over the child through a paternity action to gain some child custody rights. He can do this by:

  • Filing a legal form called the Acknowledgement of Paternity. Both parents sign this form to state that the man is indeed the biological parent of the child.
  • Filing a paternity lawsuit or Suit to Adjudicate Parentage in court. The man must take a DNA test to prove that he is the biological father of the child and both the mother and child may be swabbed for the test. If the ex-domestic partner is unwilling to cooperate with the DNA test, the man may need to ask the judge for a court order.

After paternity is established, the father will need another court order to establish child custody rights between domestic partners. This court order is necessary for the father to have any rights over the child. The court may then consider child custody issues in the same way as they would for a married couple.

You may want to consult a family law attorney to understand your options.

Why It’s Sometimes Important That Paternity Is Established

If courts do not recognize you as the legal parent of the child, you will not have the right to child custody or visitation. The legal parent can take the child and move to another county or state without your consent or telling you. They may also limit your visitation and you have no legal recourse.

You may have to go through the process of legally becoming a parent so that the courts will recognize your rights to visitation and custody. This will allow you to continue raising your child together with your ex-partner.

What If I’m Not The Biological Parent?

If you adopted the child, the state court will recognize you as a legal parent. However, there are cases where only one parent is recognized as the legal parent. Perhaps your ex-domestic partner may not have agreed to adoption or the child’s other biological parent is still in the picture. Many states will not recognize a parent-child relationship with a second parent who is a non-biological parent.

Unfortunately, this can also mean you have no way to get visitation and custody of the child. You may want to contact your lawyer to understand any options you may have.

Pet Custody and Domestic Partnership

Domestic partnership agreements are good for formalizing different types of benefits that would typically come with marriage. This includes shared health insurance. It can also allow for joint use of a home. But when it comes to pet custody, there aren’t protections with this type of legal framework.

No matter how much your pet might feel like a part of the family, in Texas, pets are considered property. In the event of a breakup, your furbaby will remain with his or her original owner. If both members of the partnership purchased your pet, then you will need to enter into some sharing agreement. However, the court may not always enforce sharing agreements, unlike the divorce orders in a typical divorce case after the end of a marriage.

It is best for you to sort out the ownership of pets and any other property with your partner. Then there will be no confusion if things end poorly and a couple separates.

Just remember, the rules of a partnership are different than a traditional divorce. The issues involved are very different from the context of traditional marriage. You’ll need help navigating this rocky landscape. 

Let us help you prepare your domestic partnership documents. Our experts at Sean Lynch law firm have decades of experience in family law. We offer consultations at our law firm. Contact us today for a no-cost case review.

More States Adopting ‘Pet Custody’ Laws

Posted on | by neal | Leave a Comment on More States Adopting ‘Pet Custody’ Laws
Reading Time: 4 minutes
Woman hugging dog.
Pets are considered important family members in many households.

To many people in Texas, dogs and cats are not just pets – they are members of the family. Even if you have children, you may feel the same way about your own beloved dog or cat (or other animals if you are a bit unconventional). Unfortunately, the love we share for our “fur babies” can make divorce proceedings especially difficult. Unlike children, whose care and wellbeing are governed by comprehensive child custody laws, Texas has no such law for how to address pets in a divorce. In the eyes of the law, dogs and cats are simply property, like a couch or a set of dishes. But in states around the country, there is widespread support for adopting pet custody laws that would treat pets more like human kids and changing the way that courts determine custody.

The Best Interests Standard

According to news reports, California enacted such a law at the beginning of 2019. It gives judges the authority (but not the mandate) to consider the best interests of the animal when its owners are getting a divorce. The “best interest” standard is used in basically every state when it comes to child custody matters (referred to as conservatorship here in Texas).

So what is in a pet’s best interests? Pet owners who want custody of a dog could provide evidence of who most often feeds it, walks it, plays with it and takes it to the vet. It is no longer just a standard of proving which spouse physically purchased or adopted the animal.

Two other states (Alaska and Illinois) have laws addressing pet custody – specifically the “best interests” standard. But people are so passionate about their pets that other states will almost certainly consider similar legislation.

Will Texas ever do the same? And should we?

Whether or not you are a pet owner, divorce is difficult for the whole family. The reassuring news is that working with an experienced family law attorney can make a significant difference in your divorce experience and the outcome of your case.

How Does Pet Custody Work?

In Texas family law, pets are considered property so pet custody is based on property law. As a community property state, Texas courts will typically split community property that was acquired during the marriage in a rough 50/50 proportion between spouses. However, it’s certainly impossible to split a dog, cat or bird in half. There are certain considerations the judge will make in these cases which are detailed in the next section.

The best approach a couple can take is to have a premarital agreement. It should detail the ownership and custody of the pet along with any visitation rights or pet visitation schedule in the event of a divorce. You can also clearly define if the pet is considered separate property or community property in a legal agreement.

A couple can also reach a pet custody agreement in divorce about who gets the pets. The judges typically have the final say in child custody cases. However, when it comes to pet custody, they will often defer to any reasonable custody agreement by spouses.

If there are custody disputes, the court will step in and make the final decision. The judge will decide the primary owner of the pet. Judges typically do not award any pet visitation schedule. However, they can enforce visitation arrangements if the spouses are in agreement. For example, you may agree that your pet should follow your children each time they visit the other party.

What Determines Ownership Of Pets And Animals?

In practice, when awarding ownership in pet custody cases, courts may consider the following factors to determine who should get custody:

  • The spouse who is the primary caretaker of the pet
  • The spouse who mainly covers the bills for pet food, visits to the vet and other things the pet needs
  • Which spouse will better care for the pet after the divorce
  • The work or travel schedules of spouses
  • Whether the children have a close relationship with the pet
  • Possession and access schedule of the children who have a close relationship with the pet. Judges commonly award pet custody to the primary parent having custody of the children

A legal agreement is the best way to define your pet as your separate property and prevent any issue. If a dispute arises without any agreements in place, you would have to prepare your case with your attorneys. Your pet can also qualify as separate property if you have evidence that the pet was a gift to you. In a divorce, the court does not divide separate property between a couple. An attorney can prepare the legal agreements and guide you on these animal custody issues.

In cases where is more than one pet involved, the judge may split the pets among the couple in the divorce. The party who isn’t as busy is more likely to get custody of the dogs. The party who travels more often or works may often get the cats. However, the judge may decide differently depending on the factors and issues involved. Some judges have even ordered that pets be sold and the proceeds split between the two spouses to resolve disputes.

Can I Fight For Custody Of My Dog (Or Cat)?

It can be difficult to determine which spouse has a better relationship with the pet and hence should get custody. If you can provide evidence that shows your stronger relationship with the pet including videos, receipts of your purchases for your pets, personal testimony from reliable witnesses, or even personal testimony from vets, you may stand a higher chance of getting custody of your pet.

You can ask neighbors or dog park visitors to testify that you were mainly the one taking the pet out. Your vet can prove you were the one who always took your pet to the vet. The testimonies will help the court to view your case more favorably. An experienced attorney or law firm can help you prepare a strong legal case that demonstrates your ability to care for the pet.

As with any child custody issue, if one party does not comply with the terms of the pet custody agreement, the other party may go to court and ask the judge to enforce the terms.

It can be very difficult to determine who gets the custody of a beloved pet during a divorce. If you need help defending your claim to pet custody or knowing your rights, let the expert Family Law attorneys at Sean Lynch law firm help you prepare your legal case. Our attorneys have years of experience in family law.

Contact us today for a no-cost case review.