If you are a parent starting the divorce process, one of your first thoughts may be about who will end up with physical custody of your child. If you and your spouse cannot agree on a plan, a Texas family law court determines child custody, legally called conservatorship, based on the child’s best interest.
How Do Texas Family Courts Decide Custody?
The issue of child custody can be divided into two categories which are:
- Possession and access
Conservatorship refers to the duties of the parents to manage child care responsibilities.
There are two types of conservatorship in Texas. Joint managing conservatorship, also known as joint custody, involves both parents sharing child care responsibilities. Sole managing conservatorship, or sole custody, involves only either parent managing child care responsibilities.
Different states consider different factors when making a legal custody decision. In Texas law, the court generally considers the child’s best interests when determining child custody. You have a stronger chance of getting custody if you prove your ability to provide for your child’s needs.
Possession and Access
Possession and access refer to the physical custody of the child and any custody and visitation arrangements. In Texas, there are two statutory schedules which dictate the amount of time that parents can spend with the child and their visitation rights. These are known as standard and extended standard schedules.
The judge may request a non-standard schedule depending on the best interests of the child. You may also agree with the other parent on a different schedule that fits your needs.
Courts Favor A Relationship With Both Parents
Studies have shown that children often fare better after divorce if they have a healthy relationship with both parents. For this reason, Texas courts will often consider it in the child’s best interests for joint managing conservatorship and joint custody to be awarded. Joint custody requires both parents to share child-rearing responsibilities. However, it does not necessarily mean you have to split the responsibilities evenly.
This is not always true for all states. Some states can make the legal assumption that women are more likely to be the primary caretaker and award physical custody of the children to the mother. Some states also require the family court to consider the child’s views.
When the best interests of the child require it, a court may award sole managing conservatorship to one parent. This is known as the custodial parent.
Even if sole managing conservatorship is awarded to the other parent, you will still often get some amount of possession and access to the child so that the child spends some time with you. Possession and access, sometimes called visitation, is awarded because it allows the child to maintain a relationship with the non-custodial parent.
You often have the most control over child custody details if you work with your spouse to create a plan. However, it can be helpful to understand how a court might determine custody cases in case negotiations are not successful.
What Determines Physical Custody?
Courts will consider a number of factors when determining the primary custody to one parent and any physical custody arrangement. They include:
- Parent’s ability to meet the day-to-day needs of the child
- Physical, emotional and medical care needs of the child
- The primary caregiver of the child
- The child’s preferences if they are old enough to express their own desires (generally when the child is over 12 years old)
- Keeping siblings together
- Reports of child abuse or neglect, and domestic violence
If parents cannot agree, the family court will determine the parent who should obtain physical custody and visitation schedules through a legal process.
How Is The Best Interests Of The Child Determined?
Law courts can have wide discretion when determining the best interests of a child. They may consider any information that is relevant to the child’s well-being. However, some factors a law court may consider include:
- What arrangement might benefit the child’s mental and physical well-being?
- Will each parent support the child’s relationship with the other parent?
- Would either parent’s mental or physical health impact the child’s well-being?
- How is each parent involved with the child’s activities?
- Who is the primary caregiver of the children?
- What are the child’s wishes if they are old enough to express them?
What Happens At A Custody Hearing?
Attorneys in your area can advise you how to file for child custody in contested child custody cases (where parents disagree about custody arrangements) and uncontested cases (where parents agree on the custody arrangements). In addition, they also provide you with legal advice.
Parents will meet with a mediator with the objective to encourage a court settlement and avoid going to trial. Mediators are trained, neutral third parties. You can ask the courts to waive the mediation requirement if it is unlikely to work. One valid justification is if you can provide evidence of domestic violence.
Each side will present their case during the trial which can last anywhere from hours to months.
The jury or the judge will announce their decision on the custody arrangement and sign the custody order.
A judge will sign the custody order which contains the terms of the legal custody and visitation rights for each parent. Both parents must abide by them for as long as the child is a minor child. A minor child who is emancipated will no longer be bound by the custody terms.
The judge can decide the terms of this legal custody after a trial. Alternatively, the parents can also determine the terms in a settlement which the judge will sign off on.
You can appeal the decision if you believe the courts have made an error in their custody decision. Parents can request the court to modify the legal custody order depending on the changing needs of the children.
One parent can also file a motion with the court if the other parent does not comply with the legal custody terms.
Why Would A Judge Change Custody?
There might be a material change in the circumstances of a parent or child that can lead to a judge changing the custody of a child. This can be due to abuse and neglect or job loss. Other reasons include a major illness diagnosis or relocation which does not allow a parent to spend time with their children. Sometimes, children might want to spend more time with another parent.
However, you can’t always apply to change the custody order immediately. There is a requirement of a one-year period after a divorce before a custody order can be changed without the agreement of the parents or extenuating circumstances that are deemed to be dangerous and harmful to the children.
You need to provide evidence to get custody of your children within this one-year period. The evidence should show that your children’s physical and mental health are significantly impaired by their present situation. Hence, this is hence not in their best interests.
Getting Custody Of Your Child
Most states including Texas do not require you to have an attorney for cases such as divorce or child custody. However, you might not always get the outcome you desire whether it is joint or sole custody or physical custody of a child. In an attorney-client relationship, the attorney is responsible for giving you the best advice for your divorce and child custody situation. They help you navigate the legal process and handle any unexpected issues that can come up during the legal case.
If you need help defending your claim to child support, let the award-winning Family Law experts at Sean Lynch help you prepare your legal case. We have decades of experience in family law.
Contact us today for a no-cost case review.