Texas Child Custody Issues

Texas law presumes that it is in the best interest of the children for the parents to serve as the Joint Managing Conservators.  “Conservatorship” is “Custody” of the children.  The conservators are generally parents, but in extraordinary instances can be a non-parent.  Often new clients call and say they want ‘joint custody’ and they mistakenly believe that this means equal time with the children, which it does not.  It does mean that the parents will either share, allocate, or apportion parental rights and duties.  In a joint custody order, one parent will either be designated as the ‘primary conservator’ or neither party will be designated as primary so long as the residence of the children is restricted by geographical area.   Please note that a Texas Judge cannot make a ruling without naming a primary conservator, this can only be done by agreement of the parties.  If there is no agreement the Court must designate one of the conservator’s as the primary conservator.

The non-primary conservator will most likely be given possession and access to the children pursuant to the Standard Possession order.  That parent will most likely be order to pay child support directly to the other parent and maintain health insurance for the children.  Uninsured expenses are generally split 50/50 between the conservators, however this is not automatic and factors like disparage earnings, health and earning potentials can be factors in determining what percentage of uninsured expenses each conservator must pay.
It is my experience that it is generally always better for parents to workout custody issues rather than let a Court or a Jury make that determination.  This is not always the case and sometimes custody battles are unavoidable.   Custody fights can take over your life.  They involve time, commitment, and significant financial and emotional expense. They can have a detrimental impact on the children. Remember your child loves the other parent.  When the divorce is final, there will be sporting events, school events, weddings and holidays.  Never enter a custody battle for spite, anger or hurt feelings.  The single best thing divorcing parents can do for their children is be respectful to each other.   Strive to keep your children out of the conflict.  If a trial occurs, they will be deep in the conflict. Again sometimes agreements just can’t be reached. Addictions, depression, mental disorders or  sufficient lack of parenting skills by one parent leaves no option.

Texas Court’s favor residency restrictions. Several years ago, an extensive study of children from divorced parents was conducted and the conclusions showed overwhelmingly that children wanted the parents living close together. Concerns voiced by the children were: inability for parents to attend school, sporting and extracurricular activities and extended periods during summer break away from their friends. As a result, many Texas Courts, specifically Fort Bend County, routinely restrict the residence of the children. The typical restriction is Fort Bend and Contiguous counties, but Fort Bend Judges will consider other counties or radius restrictions as long as they believe that the restriction serves the best interest of the children.

There is one difficult issue that comes up either at the time of a divorce or later is the relocation of the parent who desires to be awarded or is awarded primary physical custody of the child. This issue is decided by weighing a multitude of facts and factors to make an appropriate order that insures a quality relationship of both parents with the child, whether it is here or there.

Obviously, there are going to be situations where a custody fight is the only option. The Court will usually also order mediation prior to any hearing, temporary or otherwise. As a general rule, mediation proceedings are confidential and privileged.

In those cases where an agreement cannot be reached, professional services will ordinarily be required to assist the Court in making a decision. Most likely an amicus attorney will be appointed to the case.  This attorney is appointed to represent the interest of the child and not the best interest of the parent, i.e.  A social study might be ordered. The social study will involve the completion of informational data, gathering of references, and an interview in their offices and/or home. The Court may also order psychological evaluations of one or both parties and/or the children. Additionally, a party may wish to retain psychiatrists, psychologists, or private custody evaluators.

If 12 years of age or older, a child can sign an affidavit stating whom the child would prefer to live with. If requested by a party, the Court will interview a child 10 years of age or older. Neither the affidavit nor the information from the interview is binding on the court. It is some evidence, just like all the other evidence. However, the court realizes the problems in ordering a sixteen year old child to stay with a parent with whom he does not want to reside. If younger than 10, the child might have the opportunity to speak with the judge. There is no guarantee of this.

Relocation or Move Away Custody Cases

Relocation cases are difficult cases that mostly depend on the facts of the individual case. In parental relocation cases, the court considers many factors in deciding whether the child will move or not, including the motives behind the proposed move, the distance, the quality of the child’s relationship with the stay-behind parent, how the move will affect the child, and ways to keep up the relationship with the left-behind parent after the move. To have a feel for the chances that a relocation of the child will–or will not–be allowed, it is mandatory that a parent –either wanting to move or resisting the move– schedule an appointment with an experienced lawyer to go through the relevant facts.

In long distance, move away type of cases, establishing the parenting time, telephone contact, and traveling arrangements (as well as funding the long distance travel) are all factors that must be addressed. There is even a new Texas statute that specifically allows for long distance electronic visitation.

Contact Us

Let's talk about your needs and how we can help

  • This field is for validation purposes and should be left unchanged.