Fort Worth Child Custody Lawyer

What is Child Custody in Texas?

Child custody, also known as conservatorship, is the legal ability to make choices about a child’s life. These decisions could encompass where the child lives, where the child goes to school, and many other details about a child’s life.

Types of Child Custody in Texas

There are several types of conservatorship in Texas:

Managing Conservator

A managing conservator is one that has the exclusive right to determine where a child lives.

Possessory Conservator

A possessory conservator is one that has to pay child support and has a pre-determined visitation schedule. This person is the noncustodial parent, meaning the child does not live with this parent.

Joint Managing Conservator

In a joint managing conservatorship, conservators share the duties, rights, and obligations related to child care.

Sole Managing Conservator

In a sole managing conservatorship, one parent or conservator gets the right to make all of the decisions regarding the child’s upbringing. This is rare in Texas because most courts assume that a joint managing conservatorship, rather than a sole managing conservatorship, is in the child’s best interest. Factors that may lead to the granting of a sole managing conservatorship are family or domestic violence, criminal history, abuse of the child, or lack of presence in the child’s life.

Term Definition Rights & Responsibilities Common Scenarios
Managing Conservator This term is often used interchangeably with “custodial parent” and refers to the person who has the legal right to make decisions concerning the child. Has the right to make decisions about the child’s education, health care, and religious upbringing. Typically also indicates the parent with whom the child primarily lives. Often used as a more general term when specific details are not designated.
Possessory Conservator Generally refers to the parent who does not have primary physical custody of the child but has visitation rights. Has the right to spend time with the child according to a visitation schedule, and limited rights to make decisions affecting the child. Used when one parent has significantly more time with the child than the other.
Joint Managing Conservator Both parents share the rights and duties of a managing conservator, even if the actual physical custody of the child might not be equally divided. Both parents share decision-making responsibilities for the child’s education, health, and welfare, though specific rights might be allocated more to one parent in the practical arrangement. Common in situations where both parents are seen as capable of making decisions for the child’s welfare.
Sole Managing Conservator One parent has exclusive legal and physical custody rights concerning the child, including decision-making authority. This parent has exclusive rights to make decisions regarding the child’s residence, medical treatment, education, and other important aspects of the child’s life. Appointed in cases where the other parent is deemed unfit or unable to meet the child’s needs, or in agreement to simplify decisions.

There are many different types of Texas child custody scenarios, so the court looks at what is best for the child in determining how custody should be established. The court tries to ensure that the child will have frequent contact with parents who act in the child’s best interests, to provide a safe, stable, and nonviolent environment for the child, and to urge parents to share their rights and obligations equally should they separate or divorce.

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What factors do courts consider when making child custody decisions in Texas?

When determining child custody in Texas, courts primarily focus on what is in the “best interest of the child,” a guiding principle encompassing many factors. These factors are designed to assess the child’s needs and the capacity of each parent to meet those needs. The Texas Supreme Court has provided a list of factors, known as the Holley factors, to consider in cases about child custody, visitation, and support. Additionally, courts can consider any relevant facts outside of these factors to help decide what is in a child’s best interest. Here are the key factors Texas courts look at when determining child custody:

  1. The Desires of the Child: If the child is old enough to express a preference (typically 12 years or older), the court may consider the child’s wishes regarding custody and living arrangements.
  2. The Emotional and Physical Needs of the Child Now and in the Future: Courts evaluate the child’s current and future emotional and physical needs, including the need for a stable home environment, emotional support, and physical care.
  3. The Emotional and Physical Danger to the Child Now and in the Future: Any potential risk of harm or danger to the child in either parent’s care is a critical consideration.
  4. The Parental Abilities of the Individuals Seeking Custody: The court assesses each parent’s ability to provide for the child’s emotional and physical needs, including their understanding of the child’s developmental needs and their involvement in the child’s education and daily activities.
  5. The Programs Available to Assist the Parties to Promote the Best Interest of the Child: Availability of programs or assistance that can help the parent provide a secure and stable environment for the child.
  6. The Plans for the Child by the Parties Seeking Custody or the Agency: Each parent’s plans for the child’s care, education, and upbringing are considered.
  7. The Stability of the Home or Proposed Placement: The court evaluates the stability and security of each parent’s home environment.
  8. The Acts or Omissions of the Parent That May Indicate That the Existing Parent-Child Relationship Is Not a Proper One: Any behavior or failure to act by a parent that may suggest an improper relationship with the child.
  9. Any Excuse for the Parent’s Acts or Omissions: The court may consider any justification provided by a parent for their actions or lack thereof.

In addition to these factors, Texas courts do not consider certain points, such as marital status, gender, or religion of a parent, when determining custody. They are also not concerned with marital infidelity as long as it hasn’t caused harm to the child. Courts have the discretion to look at other factors outside of the Holley factors to help decide what is in a child’s best interest.

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How do courts determine Child Custody in Texas?

Ultimately, the court decides which parent or what living situation would be in the child’s best interest. There is a law in Texas in the Family Code that prevents a person with a history of domestic violence to be a joint or sole conservator of the child. Here are a few questions the court may ask to determine custody.

  • Who provided food and care for the child?
  • Who helped the child with schoolwork or took the child to and from school?
  • Who took the child to the doctor and provided medical care?
  • Who scheduled appointments for the child, including doctor’s appointments?
  • Who took the child to extracurricular activities?
  • Who met with the child’s teachers and attended school events?

Is there such a thing as a standard custody plan?

Texas has a Standard Possession Order, which grants rights to both parents. There are two main types — an order for parents who live within 100 miles of each other, and an order for parents who live more than 100 miles apart.

For parents living within 100 miles of each other, the parent without custody, or the noncustodial parent, has the following visitation rights:

  • The first, third, and fifth weekend of each month
  • Thursday evenings (every week)
  • Alternating holidays (for example, every other Thanksgiving)
  • A longer period of time (30 days) over the child’s summer vacation

For parents living over 100 miles apart, the noncustodial parent has the following visitation rights:

  • Weekends may be reduced to one weekend per month
  • No mid-week visitation
  • Alternating holidays (such as every other Thanksgiving, like in the 100 miles or less order)
  • 42 days over the child’s summer break
  • The child’s spring break

These orders may be modified to be in a child’s best interest. One reason is that a court may modify an order if a parent previously had little to no contact with a child who is very young. The court may implement a Modified Possession Order, where the noncustodial parent gets shorter visits until another plan is found to be in the best interest of the child.

Can you modify a Texas child custody order?

Yes. First, you need to obtain a copy of the original order. Your attorney can draft a motion indicating why you would like to be the sole managing conservator of the child. In the motion, the attorney will indicate why the initial order is no longer appropriate. A new hearing will be scheduled with a judge, usually the original presiding judge, to review the new motion. Be sure a copy of the motion gets sent to the other parent. The motion will be argued before the court and evidence will need to be presented to demonstrate to the court why you should have full custody of the child.

So, what does that mean? Essentially, you have to get before the judge again, state your case (the reasons why the old custody plan is no longer appropriate), and the judge has the discretion to approve the new plan, keeping the child’s best interests in mind. The main concerns for the court are: the best interest of the child, stability in the child’s life, avoidance of persistent litigation, and the child having both parents in his or her life.

Can a grandparent get custody of the child in Texas?

Sometimes. A grandparent can file suit asking for custody if the grandparent believes it is in the child’s best interest. A grandparent who becomes a custodial parent may seek child support from the parents of the child. Other than custody, a court may grant visitation for a grandparent if:

  • The child’s parents are divorced
  • The child is a victim of abuse or neglect
  • The child’s parent or parents is/are incarcerated, legally incompetent, or dead
  • The parent or parents have had their parental rights terminated; or
  • The child lives with the grandparent(s) and has done so for a minimum of 6 months.

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Can you move with the child once a custody order is in place?

Maybe, but most likely, you will need approval from a judge. Usually, custody agreements come with geographic restrictions. It may be possible to amend the custody agreement, but extenuating circumstances must exist to justify the court restricting one parent’s access to a child because the other parent wants to move, even if it is for work or educational purposes.

Can a child choose which parent to live with?

No. The judge weighs the best interest of the child in determining where the child will live. Often, judges will ask the child where he or she wants to live, but it is not guaranteed that the child will reside with the parent of his or her choosing. Generally, if a child is 12 years of age or older, he or she can tell the judge which parent the child wants to live with, but the judge cannot use that request as the sole determining factor in establishing where the child will live.

What is a Suit Affecting a Parent Child Relationship (SAPCR)?

In this type of suit, you start with a form called the parent-child relationship form. This form provides the court with specific information regarding the parties involved, jurisdiction, information about your child, as well as other information. If you want sole custody of your child, you indicate on the form that you are seeking a sole managing conservator position. After the form is completed, you file it with the Family Clerk’s Office and pay applicable fees. After this document is filed, there will be hearings to ascertain the best situation for the child. Often, evidence is presented to show that the other parent is unable to care for the child or, in cases of abuse, that the other parent has abused the child. It is not uncommon for parties in this type of suit to be court ordered to attend drug or psychological evaluation.

Who can file a SAPCR?

Each SAPCR case is different and dependent on that individual child’s needs. Many parties are able to file a SAPCR. Here are some examples of entities that can file a SAPCR:

  • The child’s parent
  • An individual with visitation rights to the child
  • A foster parent or guardian of the child
  • A child’s relative (if the child’s parents are deceased)
  • A child’s grandparent (provided they have legal standing to do so)
  • A government entity

A parent whose paternal rights have been terminated may not file a SAPCR.

Is a SAPCR different than a paternity case?

Yes. While a paternity case accomplishes similar things in some cases, the main difference is in a paternity case, paternity is being established. In a SAPCR, you ask the judge to make custody, visitation, and support (i.e. child support and/or medical support) decisions. In a paternity case, the judge may make custody, visitations, and support decisions as well, but the court must also establish paternity in those cases. If paternity has already been established or an acknowledgment of paternity has been filed, you can file a SAPCR.

Are there requirements for filing a SAPCR in Texas?

Yes. The child must have resided in Texas for at least six months OR Texas must be the child’s home state and the child must be gone (out-of-state) for less than six months at the time of filing.

If the other parent lives out of state, in addition to the above requirements, the court must have personal jurisdiction over that parent to be able to make the other parent comply with court orders, such as paying child support.

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Fort Worth Child Custody Lawyer

Our goal is to make this difficult time as painless as possible, while achieving optimal results. Whether it’s through negotiation or litigation, we’ll find the best strategy for you.  Call us today at (817) 900-3220.

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