Going through a breakup can be incredibly difficult. If you share children with your soon-to-be ex, it can be that much harder. As part of your split, you will have to determine how to co-parent your kids together – in separate households.
In Texas, child custody is determined based on the best interests of the child. It is further broken down into conservatorship (sometimes referred to as legal custody in other states) and possession (sometimes referred to physical custody in other states). If the parents can’t come to an agreement on sharing custody, then a court will make a decision based on Texas law and the unique facts of the case.
At the Law Office of Jason Wright, we understand how emotionally fraught child custody cases can be for our clients. We offer skilled, compassionate legal representation to parents and families throughout the Austin region. Contact our law firm today to schedule a consultation with a Texas child custody lawyer.
The Texas Family Code uses the terms Conservatorship and Possession to describe what most people refer to as “custody.” Child custody cases arise when one or both parents cannot agree on the care, control and decision-making of their child or children. Divorcing spouses and parents who were never married may seek a custody arrangement to resolve co-parenting issues and provide the children with stability, and in some circumstances, safety.
Parties in child custody suits may have contentious relationships with each other. Other child custody actions may resolve more favorably because the parents may reach an amicable agreement. Regardless of the relationship between the individuals seeking custody, the court’s goal is to do what is best for the child or children involved. Texas law sets forth factors and guidelines to determine the custodial arrangements that benefit children and maintain the parent-child relationships.
Contact an experienced Texas family law attorney today at The Law Office of Jason Wright, PLLC, to discuss your child custody issues and options. Call 512-884-1221 to schedule a consultation.
The public policy for Texas child custody is:
• To make sure children have frequent and continuous contact with both parents;
• To place children in a safe, stable, and nonviolent environment; and
• To encourage parents to share taking care of their children during a marital separation and after divorce.
State law defines a child or minor as a person who is less than 18 years old, not currently or ever been married, or over 18 and with a disability.
Some parents have a court order to pay child support after their child reaches 18. In a custody case, the focus is on the child. If the parents cannot agree, the court makes determinations regarding custody, including child support and possession (visitation), based on the child’s best interest.
Child support orders are often a part of child custody cases. Typically, the person who has primary possession of the child (the “obligee”) is paid child support by the other parent (the “obligor”). Child support is calculated according to guidelines that set a basic minimum amount based on factors such as net monthly income and the number of children. A court can deviate from the guidelines when appropriate due to issues such as the needs of the child, child care expenses, and financial resources.
The court may also order the parent to provide child support in the form of:
• Child, medical or dental support
• Medical insurance coverage
• Dental insurance coverage
If you are involved in a child custody case in Austin, our Texas family law attorneys can help you understand your rights as they relate to child support.
Texas law doesn’t use terms like “custody” and “child custody.” Instead Texas uses the term conservatorship to refer to a parent’s right to make decisions affecting a child’s health, education, and welfare and the terms possession to refer to parenting time. Any custody order or plan will address these issues.
The Texas Family Code refers to child custody as conservatorship. The two types of conservatorship arrangements are sole managing conservatorship and joint managing conservatorship. The presumption under the law is that it is in the child’s best interest for parents to be joint managing conservators.
In a sole managing conservatorship, the court appoints custody to one parent with exclusive rights and duties set forth by Texas law. The sole managing conservator has the exclusive rights:
• To determine the child’s primary residence
• To consent to medical, dental, surgical, psychiatric and psychological treatments
• To receive child support
• To make decisions about the child’s education
A joint managing conservatorship provides that both parents share the rights and duties of their children, but one parent may have the sole right to may certain decisions. Being joint managing conservators does not require parents to have equal physical possession, visitation time or access to the child.
As in all things, if the parents cannot agree on issues regarding conservatorship or possession, a judge will decide. Factors a judge applies to award a joint managing conservatorship include:
• The ability of the parents to put their child first and reach agreements in the best interest of the child
• The ability of the parents to encourage a positive relationship between the child and the other parent
• The likelihood that joint custody will benefit the child’s needs and development
• The geographic location of each parent’s residence
Joint custody may not prevent one parent from having to pay child support to the other parent. The court applies certain factors to determine the amount of child support and who pays it. The marital status and sex of the parents are not bases for ordering child support.
In addition to legal custody/managing conservatorship, a custody order will also address where the child will spend most of their time after a breakup or divorce. If a child has their primary residence with one parent and spends most of their time with that parent, the other parent will have a possession schedule. In Texas, the term visitation is not used, as a parent is not visiting their child. Texas law refers to parenting time as possession and access.
There are different options when it comes to determining a parenting time schedule. This can include:
Keep in mind that it is possible to work out an agreement between parents that works for your family. An Austin child custody attorney can help you negotiate a parenting plan with your ex that may be better suited to your lives than a standard possession order or what the court may order in your case.
It is often – but not always – possible for parents to work out a custody agreement between themselves rather than going through litigation. For this to work, both parents have to be ready to work together to find a solution that fits their family dynamic. If certain factors – such as domestic violence or substance abuse – are at play, then trying to collaborate on a custody agreement probably isn’t feasible or advisable.
In some cases, parents are able to agree to a custody plan on their own. Typically, this is done with the help of an Austin child custody lawyer. An attorney can offer advice on Texas law and formalize any agreement that the parties may make.
If parents can’t work out an agreement on their own, they may try formal mediation, which is a form of alternative dispute resolution. During mediation, a neutral third party will help the parties come towards a mutually agreeable agreement. Mediation is not adversarial, which means that it takes a more cooperative approach. This can often help parents get in the right frame of mind to come to an agreement. If parties reach an agreement in mediation, it will absolutely be binding on both parties.
Mediation allows both parents to discuss and negotiate custody issues in a controlled environment. With the help of a mediator and your attorney, you can develop a custody plan that is best for your family.
Litigation is expensive, stressful, and uncertain. If you are able to work with your ex, negotiating a custody agreement is often far preferable for everyone involved. If it isn’t possible, the Law Office of Jason Wright will advocate for your interests before a Texas family law judge.
When spouses file for divorce, they must state whether they have any children under eighteen in the petition to dissolve the marriage. They also must include any parent-child relationship issues in the divorce case. Either parent may seek custody of their child if the law recognizes them as the legal parent. The law presumes a mother-child relationship if the woman gave birth to the child, adopted the child or has a legal ruling that she is the mother. The law assumes the husband is the father of a child born or conceived during the marriage. The husband can also be the legal father if he adopts the child.
Some children are born to parents who are not married. However, the parents have the same right and duties to their child as married parents. Although the father does not have the presumption of paternity as married fathers, they can establish that they are the legal fathers.
One way to establish paternity is for the mother and the alleged father to sign a voluntary acknowledgment of paternity. In a child custody case, the court may order genetic testing to show that the alleged father is the biological father.
Some parents have their children through natural births and adoption. Other couples may seek assisted reproduction methods to become parents, such as surrogacy. In this process, the parents may enter into a gestational agreement, which establishes each person’s parent-child relationship with the unborn child. The agreement also shows that the spouses have a legal right to seek custody of the child.
The spouse must state in the divorce petition that:
• They entered into a gestational agreement between them that they are the intended parents of the unborn child;
• The gestational mother is pregnant, or the child is born; and
• A hearing occurred, which validated the agreement.
In divorce cases or child custody lawsuits, parents may contest issues involving child custody. When the parties cannot resolve the problems themselves, the court may appoint guardian ad litem to protect and decide on the child’s or children’s best interest concerning those matters. Texas law gives a guardian ad litem powers and duties in representing a child. They include:
• Investigating to determine the best interests of the child;
• Review the child medical and educational records; and
• Interview the child.
After accessing the child and the child custody issues, the guardian ad litem may submit a report to the court with their recommendations of what is in the child’s best interest and support their conclusions. In most cases, the guardian ad litem will testify to the information and suggestions in their report should the case go to trial.
Child custody orders are legal judgments that both parents must follow. Failure of either party to comply with the order is contempt, which could result in severe consequences. The court has the power to enforce the child custody order and place penalties or fines for noncompliance. After the order is in effect, changes may occur in the lives and circumstances of the parents and child that require a modification to the custody arrangement. However, a parent cannot change the terms of the order on their own. They must file a petition to modify the custody order. As in all things, if the parents cannot agree on the modification terms, a judge would ultimately decide.
The parent may file for a modification of the conservatorship order only if there is a substantial and material change in the parent’s or child’s circumstances. The court may modify the order if it finds that the circumstances have substantially and materially changed, and it would be in the child’s best interest. Some examples of grounds for modification include:
• A child 12 years and older tells the court which parents the child want to have the right to determine their primary residence; or
• The parent with the exclusive right to determine the child’s primary residence voluntarily gives up this right.
Changes to the child custody order may result in changes to the child support order.
If you are in the process of divorce or breaking up with your partner, it’s critical that you understand what your rights are when it comes to your children. It may be possible to work out an arrangement with your ex that is best for everyone. Otherwise, you might go to court to ask a judge to determine custody for you.
Child custody cases involve many complex issues about a child’s well-being, support, and needs. Therefore, it is best to hire an experienced family law attorney to protect your parental rights and relationship with your child. Contact The Law Office of Jason Wright, PLLC, today to schedule a consultation at 512-884-1221.
“Jason is very professional and friendly. He patiently explained everything as many times as I needed and made the law easier to understand. Gave great advice and listened to all of my suggestions walking me through if they would work or not.”
Jami L
To get in touch with us, give us a call at 512-884-1221 or submit the form below. We are committed to zealously working to find the solution that is best for you and your family.
