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.
Texas Child Custody
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.
The court may order the parent to provide child support in the form of:
• Child, medical or dental support
• Medical insurance coverage
• Dental insurance coverage
Types of Child Custody Arrangements
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.
Child Custody and Divorce
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.
Child Custody Between Unmarried Parents
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.
Guardian Ad Litem
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.
Modification of a Child Custody Order
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.
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.