Get a Head Start on Winning Your Texas Custody Case

Shayna Sanborn
By: Shayna Sanborn
PublishedJan 20, 2023
7 minute read

Divorce with children is stressful. Determining who gets what rights to the kids can turn an otherwise amicable divorce into bitter, protracted litigation. You don’t want that. But you also don’t want to be shorted precious time with your children either.

In this article, you’ll learn inside information that could help you build your child custody case around the specific factors a judge or jury will consider. You’ll also get tips on how to think like a lawyer who’s handling a Texas custody case. Let’s get started!


A Direct Line to the Court 

When you can get a head start, you’ll be able to help your attorney put together a winnable custody case. That’s a lot easier to do once you know what the judge or jury needs to know.

Have you ever heard of “pattern jury charges?” These are specific instructions given to a courtroom judge or members of the jury before they hear a case. The pattern jury charges are a distillation of the Texas Family Codes as they pertain to a specific matter, such as determining conservatorship. 

Pattern Jury Charges

Here are the pattern jury charges for a standard Texas child custody case when the question is whether joint managing conservatorship (custody) is in the best interests of the child:

“You shall appoint both parents joint managing conservators unless you find that such an appointment is not in the best interest of the child. In making this determination, you shall consider all the following factors:

    1. Whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators.
    2. 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.
    3. Whether each parent can encourage and accept a positive relationship between the child and the other parent.
    4. Whether both parents participated in child-rearing before the filing of the suit.
    5. The geographical proximity of the parents’ residences.
    6. If the child is twelve years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child.
    7. Any other relevant factor.”
      PJC 215.10, Best Interest of the Child–Joint Managing Conservatorship

We will discuss these pattern jury considerations in more detail below.

What Winning Means

What does winning your custody case mean? Well, it depends on what kind of custody arrangement you want.

  • Sole Managing Conservatorship (full custody): If you want sole custody, a ‘win’ means your child will live with you, and you will make all the important decisions about their upbringing. The other parent will retain visitation, or possession and access rights, to the child.
  • Joint Managing Conservatorship (joint custody): The stakes are not as high in a joint managing conservatorship case where both parents share authoritative rights and duties to the children. However, that does not mean you’ll get everything you want. Who will the children live with? What will the visitation schedule look like? In a JMC, you’re not fighting over the whole pie but some key slices that might mean a lot to you. A ‘win’ in a JMC means having the visitation schedule you want.
  • Terminating the Other Parent’s Rights: This is similar to pursuing full custody with one key exception: if you ‘win’ at involuntarily terminating the other party’s parental rights, you will have legally removed your ex-spouse from the child’s life forever. This also means they don’t have to pay child support or cover the child on their health insurance plan.

The following information is based around the parenting factors every Texas judge or jury is instructed to consider. It will help you build a coherent and effective argument that’ll improve your odds of getting what you want from the custody hearing.

One: What Are the Child’s Needs?

Which conservatorship, or parenting plan, best serves the physical, psychological, and emotional needs of the child or children? This is the key question in every child custody case.  

Texas courts start with the presumption that joint managing conservatorship, or joint custody, is what’s best for the child. After all, it keeps both parents involved in the child’s life. That means, if you want sole managing conservatorship, you must present facts and evidence to move the jury off that presumption.

You’ll have to make a credible and compelling argument that the other parent poses a risk to your child’s physical, psychological, and emotional well-being.

Reasons a Jury Might Grant Full Custody

A Texas family court will consider giving you sole managing conservatorship if the other parent:

  • has a history of family violence, especially toward you or the child,
  • has a history of neglecting the child,
  • has been a criminal or abused drugs and/or alcohol,
  • has been absent from the child’s life for long periods of time, and if
  • there has been extreme conflict between the parents over educational, medical, or religious values
    Texas Family Code 153.002 to 153.004
Supporting Evidence is Essential

In a court of law, you do not show up and start hurling unsupported accusations about the other parent. You must have credible evidence if you’re going to build your custody case around the other parent’s history of domestic violence, child neglect, drug abuse, or criminal behavior.

Compile Evidence 

Police and Medical Records 

A background check will reveal if a parent has a recent criminal record. Police reports will establish dates of violent incidents against a child or anyone else in the family. Get medical records to show the types of injuries you or your child suffered.

Eyewitness Testimony 

Round up as many credible witnesses as you can who can attest in court to the other parent’s behavior.

Two: Can the Parents Put the Child First?

The jury wants to know if each parent can prioritize the welfare of the child and make cooperative decisions in the child’s best interest. Depending on the level of animosity present in the divorce, this can either be a lot to ask, or the very least two parents should be able to do.

Show That You Can Encourage Parental Cooperation and Bonding

As much as you may dislike your ex, it’s important to show that you can accept and encourage your child to have a positive relationship with their other parent. 

Unless you’re making a case to terminate your spouse’s parental rights, you will seem petty and vindictive to estrange your child from their other parent. 

If so much distrust exists that cooperation with your ex-spouse seems impossible, you might force the court’s hand. A judge may award one of you sole managing conservatorship just to keep potentially volatile interactions to a minimum. 

This is not an ideal outcome unless you’re sure the court will give that full custody to you.

Don’t Harass Your Spouse 

Co-parenting harassment occurs when one parent communicates with the other in a harassing or abusive way. This harassment often extends beyond the two parents. For instance, one parent may talk poorly about the other parent or spread rumors about them. This is especially egregious if it happens in front of the children. 

Tell your attorney immediately if your ex-spouse is making threats, being inflexible, telling lies, or referring to you by derogatory nicknames. This behavior is way out of bounds in any divorce. 

Harassment not only causes tension between co-parents, but it can also lead to the children feeling scared, confused, and anxious. 

This type of parent-on-parent harassment can impair the child’s emotional well-being, and the court will not overlook this type of behavior. Such behavior can damage your Texas custody case.

Don’t Take Harassment Lightly 

If your ex-spouse has made threats or has exhibited intimidating behavior toward you since the divorce filing, call the police. 

Your ex could be violating an order of protection, or showing that you need one. 

You’ll want to submit the police report as evidence against the other parent in your custody case.

Three: Were Both Parents Involved with the Children?

Let’s be blunt: Why should the court make one parent a joint managing conservator after the marriage if they were barely a joint parent during it? 

Lack of parenting is when a parent shows indifference toward their child’s non-essential needs. This can count against the uninvolved parent in a custody case.

Collect any evidence that establishes a firm belief that you are an active parent to your child.

Consider if the Other Parent is Willfully Indifferent

It’s worth reflecting on how your spouse interacted with your child throughout your marriage. Ask yourself questions such as: 

How much of their free time did your spouse spend with the child? (sometimes/rarely/never)

When there was an opportunity for your spouse to have breakfast with the children, attend a school event, read a bedtime story, or change a diaper, did they? (sometimes/rarely/never)

Did your spouse ever discipline the children or set age-appropriate limits on bedtime or media consumption? (sometimes/rarely/never)

Here’s the bottom line: If you were more or less the “sole managing conservator” during the marriage, the court may not consider it to be in the child’s best interests to forcibly alter that arrangement now.

Four: Where Will Each Parent Live, Geographically? 

 Texas family courts want the divorced parents to maintain residence in the same geographic area for two reasons: 

  1. both parents should be able to maintain reasonable access to and contact with their child or children, and
  2. the state believes it’s best to minimize upheaval in the children’s lives as much as possible and prefers they remain at their school with friends and familiar teachers.

It is not always possible for divorced parents to remain in the area where they lived while they were married. However, the parent who resides in the children’s school district will have a significant advantage in custody matters over the one who moved.

Stay Put if You Can 

Once you’ve separated from your spouse, you might be tempted to take actions that feel emotionally satisfying at the moment. For example, you want to up and move your child closer to your family or a new romantic partner. While this may be a welcome distance between you and your spouse, it will make it difficult for your child to see their other parent. Avoid this temptation. 

Relocating with the child isn’t the “power move” you may think it is. In fact, it will likely backfire. 

Texas family courts frown upon parents who use their children as game pieces to get what they want, especially if such a maneuver has needlessly disrupted the child’s life. 

Relocation and the Child’s Age  

If you are considering moving away with your child, it can be easier to relocate with a child that hasn’t started school yet. For example, if a primary conservator would like to move closer to their natural family after separation, a judge might be more lenient if the child is a toddler than if they’re in middle school.  

Five: What Does the Child Want?

Once a child reaches the age of 12, Texas courts deem him or her old enough to express a preference for which parent they wish to live with most of the time. 

If your child wants the court to hear their wishes, you or they must file a petition with the court requesting a meeting with the judge. 

The child’s preference is not the final word on the matter. The court will treat it as evidence in the overall Texas custody case. A child’s preference is undoubtedly persuasive evidence, but the court’s top priority is whatever it deems to be in the child’s best interests.

For children under 12, a judge may still consider their preference, but no filing can require it. 

Are There Any Other Factors?

Every family is unique, which is why Texas courts don’t paint by numbers when it comes to making important rulings. Facts are weighed on a case-by-case basis.

Even after considering all the factors above, one element particular to your family’s situation could prove decisive, such as: 

  • if there is a special needs child that one parent has shown more willingness or aptitude to care for.
  • whether one parent has a chronic illness or physical disability who may be unable to adequately care or supervise the child.
  • the stability and safety of the environment outside the home. For example, one parent has the means to move the child to a safer neighborhood. 
  • whether giving one parent primary custody would undermine the child’s relationship with their other parent’s extended family.
  • each parent’s career demands. For example, one parent may be required to travel for work too often to justify having primary custody.
  • … and many more.

If you have more questions about child custody in Texas, it’s always a good idea to speak with an attorney about your best course of action.

The Right Lawyer Makes the Difference 

If you have children and are getting divorced, hiring just any attorney simply won’t do. You need an experienced and compassionate legal representative at your table. A Texas child custody lawyer will be your partner in seeking the best outcome for you and your child. We’ve got this. Call 214-884-3775 today to begin a case assessment.

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