Getting divorced is never an easy thing. There’s so much to sort out, and if there are children, determining how to share parental rights and responsibilities is a top concern. The process can be stressful, and a fair outcome can be difficult to obtain without an attorney’s help.
Are you wondering what to expect from a Texas child custody arrangement? Here are answers to some frequently asked questions.
Because families are unique, so is every child custody case. The Texas Family Code was written with this in mind and gives the courts broad discretion when determining what’s in the best interests of the children. Rest assured, the judge will examine your specific circumstances as closely as they do the law.
Here are some of the basics.
In Texas, the legal term for “custody” is conservatorship, and there are two kinds:
Sole managing conservatorship gives one parent total say in all important matters regarding the children, including their health, residence, education, religion, and culture. However, Texas only awards one parent total control if the other parent is absent, struggles with drugs and/or alcohol, or has a history of committing domestic violence or abuse against the other parent or the children.
Joint managing conservatorship is when parents share decision-making authority for most child-related issues. Since Texas courts presume that shared parenting is better for children, this is the more common custody arrangement. It does not mean, however, that the parents are expected to split time with the children equally.
In most joint managing conservatorships, one parent is designated the primary conservator. The primary conservator is the parent the children will live with. You might also hear this referred to as the parent with primary possessory conservatorship, but let’s keep it simple. The non-primary conservator has visitation rights — typically the first, third, and fifth weekends of each month — and has a right to contest any important decision made by the primary parent.
Family law judges rely on a number of factors to determine which parent should be the primary conservator. These include:
- the child’s immediate and future physical and emotional needs
- any immediate or future danger to the child
- each parent’s plans and parental abilities
- the stability of the home
- past actions like abuse or neglect that indicate an unhealthy parent-child relationship
- the child’s wishes, providing the child is old enough to express an opinion on the issue
The Texas Family Codes are quite clear on the matter, stating, “A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.” (Texas Fam. Codes Sec. 153.001 (b))
Since Texas prefers that both parents maintain continuing and meaningful contact with their children, the law strives for an arrangement allowing everyone to win.
But if you are asking how to be named the primary conservator in a joint custody order, there are some steps you might take to improve your chances. These include:
- Behave Responsibly: Don’t drink, abuse drugs, or leave the children unsupervised.
- Be Consistent and Available: Be consistent and reliable in all matters regarding your children, the courts, and the other parent. If you’re constantly rescheduling important meetings or canceling opportunities to visit the children, you’ll look flighty, disorganized, or self-involved — unappealing qualities to a family court judge.
- Request a Child Custody Evaluation: Many child custody hearings break down into a battle of “he said”–“she said,” but they really don’t have to. One way to validate your claims — and defend yourself against lies or exaggerations by the other parent — is to arm yourself with the appraisal of a neutral observer. Consider asking the court to appoint a child custody evaluator to visit your home and assess whether it is a suitable environment to raise a kid.
- Cooperate with Your Ex When Possible: This can be difficult to do during a contentious child custody dispute. However, demonstrating an ability to compromise shows the court that you are mature, considerate, and even-tempered — qualities a family court judge can look to when deciding which environment is better for the children.
- Obey the Court: When the court asks you to provide or do something related to the custody hearing, do it. Failing to follow court orders will undermine your case.
- Be Flexible About Where You’ll Live: Remember, the courts want to do what’s in the best interests of the children. For instance, it can hurt your chances of primary custody if the children must change schools. Staying put or agreeing to move back might improve your outcome.
- Hire an Experienced Family Law Attorney: Whether you and your ex cooperate or always fight, you need a competent and compassionate attorney to help ensure you get a fair deal in court.
Generally, no. The exception is if one of the parties files a motion to Confer with Child. This motion allows a child who is 12 years of age or older to express to the court with which parent they would prefer to live. However, even if a judge takes the child’s wishes into consideration, it does not mean the case will sway in one direction or the other. The court must ultimately decide what is in the child’s best interest.
Do not voluntarily bring your child to court for any family matters unless a judge requests it.
First, keep in mind that Texas courts do not call it “visitation.” The state uses the term possession and access and that refers to when parents have physical custody of the children or visitation rights.
In Texas, there are two possession and access schedules: standard and expanded standard.
These schedules dictate how much time each parent spends with the child. However, the parties can agree on different possession and access schedules based on their needs, or the court can order a different possession and access schedule based on the best interests of the child.
Check your court order to see if moving is restricted. Normally, if you move less than 100 miles away from your child, your visitation will not change.
If you have the standard possession order, and the other parent moves more than 100 miles away from your child, you may have the option to change to one weekend a month instead of every first, third, and fifth weekend.
Some parents continue the first, third, and fifth weekend if time and money allow. Summer visitation can become longer (from about 30 days to possibly 42 days) and you will get possession of your child each year during spring break instead of every other year. However, you may have to give up your weekday visits.
If the alternate schedule works better for you, you have 90 days after your move to give the other parent notice of your move and that you intend to exercise the alternate possession schedule.
Unless the court orders differently, you’ll probably have to drive to the custodial parent’s house to pick up and drop off your child. The costs of transportation, including flying, can be addressed in the court order. Some orders require the parent that is moving to pay all costs, and other orders require the parents to divide the costs equally or in proportion to their incomes.
Keep in mind that moving will likely reduce the time you can spend with your child. There are ways to fill this gap, such as scheduling time every week or so to talk to your child on the phone, or online. If you schedule a time to communicate, follow through to keep from disappointing your child. Most importantly, make sure your child understands why you are moving and that you still want to be an involved parent.
Yes, it can — but only by the same court that issued the original order.
If a court makes an initial custody determination regarding a child, then it retains exclusive continuing Jurisdiction under Texas Family Code Section 152.202.
Contact an attorney if you want to modify the original custody order. An attorney can help you file the proper motion and get the process underway.