How To Get Custody Of A Child In Texas

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Texas Child Custody

Child Custody in Texas

According to the Texas Statutes, Family Code, Chapter 153, the court presumes for joint managing conservators; however, the best interest of the child transcends all other considerations.

The Texas court has several options when issuing a custody order. Sole custody can be awarded to one parent, which means that the child resides primarily with that parent and that parent has the exclusive right to make decisions about the child's upbringing. However, Texas courts prefer joint custody arrangements so the child maintains a meaningful relationship with both parents. Joint legal custody means that the child still primarily resides with one parent and the other parent enjoys visitation; however, the parents share decision-making in raising the child. Shared custody means that the parents share legal custody rights but also that the child actually has two residences and lives with each parent for at least 35 percent of the year. The last option is split custody and is rarely used. With this arrangement, there are at least two children, and each parent is awarded full custody of at least one child.

Mandatory Parenting Class

Texas courts often require all divorcing parents with minor children to complete a mandatory parenting class before granting a divorce. This requirement is designed to help parents and children deal with the trauma of divorce and separation. Unless the court grants a waiver, both parents must typically complete this requirement. Rather than give up an afternoon or evening taking your course in a crowded classroom, you can fulfill this requirement conveniently online at a very reasonable cost. We recommend you take Children in Between Online" to fulfill your court requirement and for the benefit of your children.

Legal and Physical Custody

Legal custody means a parent's right to raise the child and make decisions regarding the child's day-to-day upbringing, such as where the child goes to school, what religion the child practices, what medical treatments that child receives and what activities the child participates in. Physical custody means possession. In Texas, a parent with physical custody is called the "possessory conservator," and the child resides with that parent.

While many in Texas may use the term custody, under the Texas Family Code, custody is actually referred to as conservatorship.

Best Interests

Section 154.004 of the Texas Family Code describes the "best interests of the child" standard. The court evaluates the home environment each parent offers, the distance between the parents' homes, each parent's ability to serve as the child's caretaker, whether the parents can work together in raising the child, each parent's financial circumstances, each parent's employment situation (including travel and work hours that might limit the parent's availability) and the child's preference if the child is at least 12 years old.

Determining Child Custody in Texas

The court has great discretion when making custody determinations, but considers:

the child's wishes;
the current and future emotional and physical needs of the child;
any current or future emotional and physical danger to the child;
the parenting abilities of each parent;
the programs available to assist each parent to promote the best interest of the child;
the plans for the child by each parent;
the stability of the proposed home; and
any acts or omissions of the parent that may indicate parental unfitness, and any explanations for such acts or omissions

Custody battles are often contentious and can be complex because the court considers so many factors when making decisions in these cases.

Texas Child Custody

In Texas, there are two different forms of custody, or conservatorship, rights given to parents. A managing conservatorship allows a parent to make legal decisions regarding the child, such as which school or church to attend, as well as the power to make financial and medical decisions for the child. A possessory conservatorship gives a parent the right to access and visit the child but not necessarily the authority to make legal decisions for the child.

The Texas court grants a joint conservatorship in consideration of:

the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;
whether each parent can encourage and accept a positive relationship between the child and the other parent;
the extent to which both parents participated in raising the child so far;
the physical distance between the residences of the parents;
the child's preference, if the child is age 12 or older;
Any other relevant factors;

Parents going through the conservatorship process should understand that the court will make its evaluation based on the behavior of the parents throughout the proceedings. A joint conservatorship is not awarded where there is a history of danger or neglect toward the child.

Moreover, Texas law furthers the steps toward a conservatorship agreement by encouraging parents to enter into a conservatorship agreement themselves.

Joint Custody Preference

Texas law expresses a preference for parents to share as equally as practically possible in the custody of a child in a divorce case. In Texas, the courts favor granting both parents access to the child absent parental misconduct, such as neglect, domestic violence or abuse.

Shared custody means both parents share in all aspects of a child's upbringing. Both parents make medical decisions, and both parents can sign medical release forms and have access to the child's medical records. Both parents may also be apprised of all aspects of the child's education.

If a parent is unfit, a sole custody or sole conservatorship will be granted to the other parent who will have exclusive managing and possessory conservatorship over the child.

When both parents share equal managing and possessory conservatorship the arrangement is referred to as joint conservatorship. However, joint possessory conservatorship or joint physical custody can be practically difficult. Therefore, joint managing conservatorship is often granted where both parents equally share in making the child's legal decisions but the child predominantly lives with one parent.

In Texas the court presumes that it is in the best interest of the child for the parents to be given joint managing conservatorship. To determine the appropriate conservatorship of the child the court will use the "best interests of the child" standard.

Third Party Custody

In some cases, a third party, or someone other than a child's biological parents, tries to gain custody of a child. If one or more of the parents are deceased, the closest living relative may file a custody suit. A person who has been in the possession of a child for a period of at least six months may also have legal rights to the child and may file a child custody suit. Grandparents have legal rights to their grandchildren when the parents are deceased. If both parents are deceased, then a grandparent may be able to take legal custody of a child.

Parental Conduct

The courts also consider the conduct of both parents during the course of the marriage, and the impact of parental behavior on the child.

Texas looks unfavorably on any parent with a history of domestic violence, drug or criminal behavior.

If one or both biological parents had their parental rights terminated, then they are not eligible to file for custody in Texas.

The court may remove a child if it determines that he or she has been subjected to abuse or neglect, and the parents' custody rights may be terminated. Also, if one or more of the parents are convicted of a felony, then they may lose their parental rights either temporarily or permanently.

Visitation

A Standard Possession Order sets forth the non-custodial parent's visitation rights. It gives the visiting parent the right to exercise visitation on alternating weekends, usually the first, and third and fifth weekends of each month. When parents live more than 100 miles apart, the non-custodial parent is usually only entitled to one weekend per month and has additional visitation at another time. Both parents have the right to spend holidays with their child and may divide the day in half or alternate years. During the summer, a non-custodial parent is entitled to a visitation period of at least 30 days. If the parents live more than 100 miles apart and the non-custodial parent only has one weekend visitation per month, the summer visitation period increases to 42 days.