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Texas Child Custody FAQs

A custody case can be as confusing for a parent as it is for the child. In helping Texas families sort out the best arrangement for their kids, we’re often asked questions both basic and detailed. Below are some of those frequently asked questions.

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Who can sue for child custody in Texas?

Parents of a child always can sue for custody of their child. In some cases people who have served in a parental capacity also have legal standing to file a custody suit, if they have had care, control, and possession of the child for at least six months.  That group of people may include grandparents, aunts and uncles, family friends, unmarried domestic partners, and step-parents. The relevant case, decided by the Texas Supreme Court on June 15, 2018, was In the Interest of H.S., a Minor Child.

What is the difference between physical custody and legal custody?

Physical custody gives the parent the right to determine where the child lives. Legal custody gives parents the right to make legal, medical, and educational decisions for the child.

How does joint custody work?

When the court awards joint custody it will name a Primary Conservator (usually the person the child spends the most time living with, and who has physical custody) and a Possessing Conservator (usually the one who pays child support, and who has a right to spend time with the child).  Both conservators will work out a co-parenting schedule (also known as visitation).

The court will name both parents “Joint Managing Conservators.”  A Managing Conservator has legal custody of the child.   A joint conservatorship means both parents have the right to make legal, medical, and educational decisions for the child.  Each parent is expected to work with the other parent to reach a consensus on those decisions.

What is sole custody of a child?

Sole custody means one party is the only Managing Conservator, in addition to serving as the Primary Conservator. It does not necessarily mean the other parent will not be given the ability to act as a Possessing Conservator.

What is a temporary child custody order, and how does it work?

An emergency temporary child custody order (also known as an ex parte custody order) would be issued only when there is clear and present danger to the child.  Unless one is issued the parents have the right to determine where the child lives.  A parent’s acting as though he or she has sole custody and actively attempting to keep the child from the other parent can weaken his or her case later, if there are no grounds for emergency child custody orders or protective orders.

How do Texas courts decide custody?

You are not required to go to court. You and your ex may reach an amicable agreement that serves the best interests of your child, and can settle out of court. In most cases that is ideal, because the two people who are most intimately familiar with the children and with the family’s situation can craft an arrangement that works for them.

You’ll only go in front of a judge if you can’t reach a consensus. At that point, a perfect stranger (albeit one with judgment and experience) will be doing his or her best to decide what’s right by your child.

How can I maximize my chances of winning my Texas child custody case?

Focus less on how the other parent is a “bad parent,” and focus more on what you offer. Focus on what you have done to care for your child.  Have you gone to medical appointments?  Do you attend school events?  Do you read to the child at night?  Those are examples of things that you can and probably should bring to the judge’s attention.

Are Texas judges biased against fathers in child custody cases?

Not in our experience.  Judges are more inclined to grant Primary Conservatorship to the parent who has been the “primary caretaker.” That refers to the parent who routinely gets up and takes the kids to school, gets them dressed and cleaned, feeds them, manages their events, brings them to their medical appointments, helps with their homework, meets with their teachers, and so on.

Often, but not always, that person is the mother. When it is the father, the father will have the stronger case for becoming the Primary Conservator.

How does Texas view unwed parents in child custody cases?

As long as neither parent is “unfit,” Texas courts prefer to foster a relationship between both parents and their child, even if the parents aren’t married.  The court may be inclined to set up a co-parenting schedule and to send both parents to parenting classes, to ensure both parents have the skills to deal with their child, and confidence in one another’s ability to do so.

What makes a parent “unfit” for child custody?

The legal definition is a parent who would significantly impair the child’s physical health or emotional development.  Of course, the reasons for that can vary.  A drug or alcohol problem may render a parent unfit, as can a severe mental illness, or an established pattern of abuse or neglect.

How do allegations of abuse affect a child custody case?

It depends on how well you and your lawyers handle the allegations.  If you are the accused you will want to focus on rebutting or disproving those claims.  There may be an investigation. It’s in your best interests to cooperate.

If you’re the accuser, you need to provide the courts with proper documentation, and you need to focus on the relevant aspects of the problem to ensure the judge takes you seriously.  You will need to share with your attorney any photographs, medical records, or police reports that help establish a pattern of abuse.  Many people allege abuse to get a “leg up” in court.  In the absence of any evidence those claims may be dismissed, and your effort may backfire.

Other questions?

Contact Evans Family Law Group in Austin today to discuss your family’s unique situation.


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