Child custody decisions are some of the most important types of decisions that can be handled by the justice system. In order to ensure that children are cared for properly, there are certain factors that are considered when making this decision. If you are entering a child custody case, it is imperative that you familiarize yourself with these factors. If you are feeling intimidated or overwhelmed by your child custody issues, a lawyer that specializes in these types of cases.
Let’s look at some of the main factors that are considered in a child custody decision in Texas.
Where to File the Case
The child custody case must be filed in the home state of the child. A child’s home state, according to Texas law, is established at the commencement of the proceeding. This means that the child’s home state must be established on the date the proceedings start. Your child needs to have lived in the state for at least six months.
What If One Parent Moves Out of State?
If the child and both parents are living in Texas, then Texas will have jurisdiction over those parties involved in the case. If one parent moves out of state, then the parent will be responsible for showing proof of anyone who has lived with the child for the last five years. The parent will also need to provide proof of where the child lives as well.
Can My Custody Order Be Modified?
In the state of Texas, it is possible to modify a custody order. Modifications need to be done in the same court that made the initial decisions. The court that made decisions concerning your child’s custody will continue to have jurisdiction in that case.
Factors That Help Determine Custody
It is often considered in the best interest of the child for both parents to be named joint conservators. There are cases, though, in which this is not in the best interest of the child. In these situations, other factors will be considered. Let’s look at some of these factors.
The child’s desires- The court will take into consideration the child’s desires. The court acknowledges that it is important for a child to live where they will be happy. However, children cannot be entirely capable of making this decision until they are a certain age.
The child’s emotional and physical needs- Another factor that will be considered is which parent can best provide for the child’s emotional and physical needs.
The child’s safety- If there is any chance of a child being in danger, then this will also be taken into consideration.
Parenting abilities of the parents- The parenting abilities of both parents will also be considered when deciding a custody decision.
The stability of the home life-The court will also consider the stability of home life. This will include many subfactors.
Any evidence of domestic violence- It is imperative that the court understand if there were any issues with domestic violence that might affect the child’s safety.
What is the Difference Between Custody and Conservatorship?
In the state of Texas, the term conservatorship is used to describe custody. Conservators come in two forms.
- Managing Conservator
- Possessory Conservator
What Does the Conservatorship Grant
Custody or conservatorship grants many rights, but the one right that is most often contested is the right to choose where the child lives. The child’s primary residence will have a huge impact on their life as well as the life of the parent. The primary residence also plays a big part in where the child will attend school. The person who is awarded the right to make these choices is called the primary conservator.
Can One Parent Be Awarded Sole Custody?
The short answer is yes. One parent can most certainly be awarded sole custody or conservatorship of a child. If the court determines that it is in the best interest of the child to be under the primary custody of one parent, then that parent will be awarded custody.
Can A Child Decide Who They Live With?
Under Texas child custody laws, the decision of who to live with is never up to the child. A child cannot decide where they live until they are 18 years old. However, a judge may interview a child to better understand the child’s desires and why they may desire to live with one parent over another.
What Rights Do I Have with Sole Custody?
If you are granted a sole conservatorship in the state of Texas, you will have certain rights. Let’s look at some of those rights.
- Right to choose primary residence
- Right to consent to medical treatment, dental treatment, or surgical treatment when needed
- Right to consent to mental health treatment
- Right to receive child support
- Right to represent the child in court
- Right to consent to the child’s marriage if under 18
- Right to consent to the child’s enlistment into military service if under 18
- Right to educational decisions
- Right to the earnings of the child
What Rights Does the Other Parent Have?
Just because one parent is awarded full custody or conservatorship, does not mean that the other parent has no rights at all. Here is a brief description of the rights of the other parent.
- Right to receive information on health, education, or welfare matters.
- Right to confer with the other parent to come to decisions concerning the child
- Right to access records concerning the child
- Right to discuss the child’s medical information with a doctor
- Right to discuss educational issues with the school
- Right to participate or attend school activities
- Right to be listed as an emergency contact
- Right to consent to medical care
What About Visitation?
Even if you are not awarded sole custody or conservatorship, a parent will still have the right to visit the child. If you are not granted sole conservatorship, then you will be granted possessory conservatorship. This means that although you do not hold the majority of the decision-making power, you still hold the right to possess the child for visits.
These visits should be conducted through an organized visitation schedule. In most cases, it is best to allow the court to establish and order a set schedule. This cuts down on confusion and conflicts concerning the schedule.
Will a History of Violence Impact the Custody Case?
If there has been any history of violence that is properly documented, it can greatly impact a custody case. It does not necessarily mean that someone cannot ever be granted custody, but it can complicate things.
What If Both Parents Seem Suitable?
If the court decides that there are no red flags on either parent, then the court will need to look more deeply into the parenting relationship between the children and both parents.
The choice will usually come down to which parent had provided the bulk of the parenting prior to the separation. There is usually one primary caretaker in a two-parent relationship. The court will try to figure out which parent filled this role before the couple separated. The court will try to determine this by looking at the following factors.
- Who mostly fed the child?
- Who usually bathes the child?
- Who got the child ready for school?
- Who transported the child to and from school?
- Who took care of doctor’s appointments?
- Who came to school activities and handled teacher meetings?
- Who assisted with homework?
The court will try to figure out which parent was the primary caregiver. Custody is usually granted to that parent.
When heading into a child custody case there are also factors beyond the legal issues mentioned above. Here are some final things you should consider during this time.
Your own mental health- Any type of legal proceeding can be stressful. A legal proceeding that involves your child can be especially challenging. It is imperative that you do all you can to protect your own mental health during this time. If necessary, you should seek out the help of a counselor or therapist. This can be a valuable resource to help you sort through the many emotions you may be experiencing right now. Therapy can also help you to better regulate your emotions and responses. Having the proper type of response is crucial in a legal matter. If a judge sees a parent struggling to control their own emotions, it could impact how they view your ability to control yourself under stress.
Your child’s mental health- Many parents make the mistake of assuming their child is fine during these types of legal proceedings. This is especially true if the child is not overtly displaying any type of behavior changes. The worrisome thing is that many children do not exhibit the stress they are under. They want things to be normal so badly, that they will continue to act normal, hoping it makes things normal. This is actually very bad for your child’s mental health. Your child will most likely benefit from counseling or therapy during this time as well.
Future relationships- It is tempting during a legal proceeding to burn bridges. There are heightened emotions especially surrounding a custody case. These heightened emotions could lead you to do or say things you might regret later on. You want to leave the custody case with some type of relationship with the other parent still intact. The fact is, you will have to interact with this person for years to come. The better relationship you can preserve, the better it will be to co-parent in the future. It is also important for your children to know that their parents can interact peaceably. If you are facing a custody battle, The Amsberry Law Firm can help. You’re not alone.