You’ve made the decision to get divorced. And now you are considering making another big decision: You want to have possession of the kids. We should say upfront, it is not easy for a mother or father to achieve this. But it can be done. So if this is something on your mind, here are some key things to know about how to win custody in Texas.
What Does it Mean to Have Child Custody?
Before explaining how to win child custody, we need to explain a few things about family law in the State of Texas.
First, Texas has two types of custody, physical and legal. In a divorce, the court usually orders the children to live most or all of the time with one of the two parties. The person has physical custody, and the court calls him or her the custodial parent.
But a parent can also have legal custody. A parent who has legal custody has the right to be involved in making important decisions for the child. For example, the parent has the right to make decisions about the children’s education, medical care, place of residence, and general welfare.
What Does It Mean to Be a Conservator?
Child custody cases in the State of Texas can be confusing because courts don’t use the term “custody.” Instead, they refer to conservatorship. The court calls the parent with whom the children live the custodial parent, or primary conservator.
Judges call the other party the non-custodial parent, or possessory conservator. The judge often requires the non-custodial parent to pay child support.
For example, when the divorced parents have equal decision-making authority, it means they have a joint managing conservatorship. You may also hear the term joining legal custody. And when a parent wants the exclusive right to make decisions, it means he or she is requesting to be named sole managing conservator. This may also be called sole custody, or your friends may casually mention it as “full custody.”
These terms matter because if you tell your family law attorney you want to get custody of your children, he or she is likely to ask, “What exactly do you mean?”
It is Not Easy to Win Child Custody in Texas
As family law attorneys will tell you, it is not easy to be named sole managing conservator. This is because of how Texas Courts operate. The Texas Family Code Section 153.002 states, “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
Obviously, this sounds very appealing to a parent—we all want what is best for the children. However, courts are inclined to believe that the children’s “best interest” means having both parents deeply involved in their children’s lives. So if you are wanting to be named the sole managing conservator, it means you are asking the court to parent your ex from having any say in the lives of his or her children.
Thus, while it is possible to win custody, it is not easy. It will be up to YOU to convince the court that this is in the best interest of your children. And it will not be enough to simply claim that your spouse is a “bad parent.” This is why if you think you will have a custody battle, we encourage you to hire a skilled family law attorney.
What are the Grounds to Win Sole Custody in Texas?
The Texas Family Code, Chapter 161, Subchapter A defines the requirements for a parent to win custody in Texas. Here is a simplified list of reasons why the court may terminate the custody rights of the other parent:
- Was absent for at least three months
- Knowingly engaged in conduct that endangered the well-being of the child, or knowingly allowed the child to be in a situation that endangered his or her well-being
- Has abused drugs or alcohol
- Has been convicted of a serious crime
- Voluntarily and knowingly abandoned the woman, or failed to provide adequate support, during the time of her pregnancy and through the birth;
- Is responsible for the child being born addicted to alcohol or an illegal drug;
- Knowingly refused to comply with court orders
- Failed to provide adequate support for the child over an extended time
- Voluntarily abandoned the child with an expressed intent not to return;
- Has had his or her parental rights terminated in another case
Generally speaking, if you want to win custody in Texas, you need to be able to show that your spouse or ex has put your children in serious physical or emotional danger.
As we mentioned, this not a full explanation of the grounds for winning a custody case. Every situation is a little different, and it is not always easy to know the best interest of the child. This is another reason why if you are facing a custody battle, we highly recommend you consult a divorce attorney.
It Is Time-consuming and Expensive to Win Custody
We have already stated that it is difficult to get full custody in Texas. It also can take time. Your spouse or ex is not likely to accept your decision and probably will hire a lawyer. While it is unlikely, a sole conservatorship case can last for years.
Of course, the longer a case goes on, the more expensive it is. And keep in mind, family law is not the same as personal injury law. Thus, you should not expect the lawyer will only charge you only if he or she wins the case.
We don’t want to discourage you. If you sincerely believe that terminating your ex’s parental rights is in the best interests of your children, then you should pursue it. We just want each Texas family to be aware of the potential issues that may arise.
A Parent May Want to Consider Other Alternatives to Full Custody
How important is it to you to get full possession of your children? The court system usually is more open to alternative arrangements. For example, a parent could ask the court to limit the amount of access and visitation rights the ex has. Another option is to ask the court to deny your ex the right to make decisions on specific issues.
The more things you are willing to negotiate, the more receptive a family law judge may be to your requests. You also may have more success convincing your spouse or ex to go along with your plan. Read our blog about how to change a Texas Court Order for Child Access.
Be aware that even if you win custody in Texas in your divorce, the judge may still award visitation rights to your ex. In addition, if the court gives you sole managing conservatorship, it is possible that your ex will not have to provide any child support. An experienced divorce lawyer can be very helpful in advising you on these matters.
What if I am at Risk of Losing Custody in Texas?
A parent also must be prepared to consider the other side of the coin: what if your spouse or ex is trying to take the children away from you? Ideally, we all prefer to avoid conflict, and we always want to focus on the best interests of the child.
But while it’s nice to have an amicable separation, your children are a different matter. If you decide to handle your own conservatorship case, you might make a mistake that gives your ex sole child custody.
True, you can always request a court modification afterward. But the judge may well wonder why you accepted the custody arrangement in the first place. And if you file an appeal, it is going to cost you more time—and more money. Read our blog about changing a custody order without going to court.
In a Family Law Case, the Stakes are High
Divorce can be stressful. If it involves a custody case, the divorce can be both stressful and contentious.
At Sean Lynch, our lawyers are experts in the family code and very experienced in the complexities of a child custody cases. We will fight for your family in court, while always remaining sensitive to the concerns of protecting your child or children. We also offer transparent, affordable pricing, as well as a no-cost initial consultation.
Your parental rights are important to you, and they are important to us, too. For a no-cost, initial consultation, contact our office or call 817-668-5879. You’ll be happy with your decision to consult with our award-winning Tarrant County divorce attorneys.