How Will A Judge Make A Decision About Conservatorship
When deciding who will have custody, a judge will try to make an arrangement that s/he thinks is in the best interest of the child.1
Some factors the judge may consider are:
- whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators
- the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the childs best interest
- whether each parent can encourage and accept a positive relationship between the child and the other parent
- whether both parents participated in child rearing before the filing of the suit and the
- the geographical proximity of the parents residences.2
In addition, if the child is 12 or older, the judge is supposed to interview with the child in chambers to find out the childs wishes as to which parent s/he prefers to have the right to decide his/her primary residence. If the child is under 12, the judge may interview the child about this but doesnt have to. Also, a judge may interview a child of any age in chambers to find out the childs wishes as to possession, access, or any other issue in the case affecting the parent-child relationship.3
Note: Texas law requires judges not to consider the sex or marital status of the person when determining conservatorship or possession of and access to the child.4
What Is The Best Interest Of The Child
The best interest of the child is exactly what it sounds like. The court evaluates what living situation would be the most positive experience for the child by looking at a number of factors. The court may consider the following:
- The emotional and physical needs of the child
- Concerns about danger to the child
- Stability at home
- Programs available to help parents promote the best interest of the child
- The parents plans for the child
- Acts or omissions by the parent that indicate the existing parent-child relationship is improper
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Even in the most amicable ofdivorce proceedings, agreeing on a satisfactory child custody arrangement can be an arduous process. Parents often ask us how to win child custody in Texas. The state of Texas makes it a priority to give both parents access to their children following a divorce, but that can happen in one of two ways. One parent can be given sole custody, also known as sole managing conservatorship, or custody can be shared through a joint managing conservatorship.
The significance of these arrangements has more to do with decision-making responsibilities than living arrangements, which is why the state generally prefers naming each parent a managing conservator.
Why Choose Our Texas Child Custody Attorneys?
- We put 110+ years of combined experience on your side
- We aim to deliver the best in customer service
- We carefully listen to our clients’ concerns before we give expert advice
- Our team includes family law specialists who are board certified by the Texas Board of Legal Specialization
or fill out ouronline contact form to schedule a consultation with a Texas child custody lawyer near you!
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Texas Family Code 153252 Provides:
In a suit, there is a rebuttable presumption that the standard possession order in Subchapter F:
Thus, in order to have a custody schedule that does not provide specific dates and times for the child, a Lawyer should write into the decree the basis for why the presumption should be rebutted.
Unless the lawyer drafts this part of the decree, the client getting sole conservatorship risks a higher likelihood that the possessory conservator will be able to modify the designation at a later date. However, this is no language, in the authors opinion, that could be written into the decree so as to permanently and completely prevent a later possible modification if it is sought by a parent.
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When Can I Modify Custody In Texas
You can modify custody if it is in the best interests of the child and:
1.) the parents agree
2.) if the child is 12 years old or older and tells the court he wants to change his primary caretaker
3.) the person with the right to determine the primary residence relinquishes care and possession of the child for at least 6 months or there has been a material and substantial change in the circumstances of either the child, the parent, the conservator or another significant party.
The most common way people modify custody is by showing that there has been a significant change in a partys circumstances, which is a very broad category and can be proven in a variety of ways.
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Termination Of Parental Rights
Only in rare cases will a court in Texas entirely terminate the rights of one parent. This means one parent has the right to make all the decisions for the child , and the right to all the parenting time to the complete exclusion of the other parent.
To terminate one parent’s rights, the court must have clear and convincing evidence of one of the grounds for termination under the Texas Family Code, and believe that termination of the parent-child relationship is in the best interests of the child.
For example, the court may terminate the parent-child relationship if the parent has voluntarily left the child alone or in the possession of another person who is not the child’s parent, and expressed an intention not to return. If the parent has abandoned the child, knowingly placed the child in dangerous conditions or knowingly engaged in criminal conduct that has resulted in a conviction and imprisonment, these are other possible grounds for termination of the parent-child relationship.
Attend Mediation And/or Hearing
Before mediation or a hearing is scheduled, the court must wait for a response to your motion from the other party. Courts typically offer three to four weeks for the other parent to respond.
If the other party does not respond, the court will usually offer a default judgment, meaning that they will rule in favor of the custody arrangement you have laid out in your petition. Once a response from the other party is received, the court will schedule a mediation or a hearing.
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Texas Access And Visitation Hotline
The Texas Access and Visitation Hotline is the only service of its kind in the nation that provides noncustodial and custodial parents with free phone access to parenting time specialists who provide legal information related to child custody and visitation issues, as well as paternity and child support information.
The toll-free number is answered in English and Spanish, Monday – Friday, 1-5 p.m. The Hotline has a corresponding website,www.txaccess.org, where parents can download sample materials and tools for assistance with child access issues. Additional brief legal coaching or self-help assistance may be available to eligible Hotline callers.
Join Custody And Possession Orders
There are many ways to receive a possession order when both parents are awarded joint custody in Texas. Its most common to receive a possession order during a divorce case, however, there are other ways to get one if necessary. After a divorce, its still possible to file for a possession order. The reasons many people file for possession orders after a divorce include:
- family violence
- confirmation of fatherhood or motherhood
- or parent-child relationship case
In cases of family violence, a judge issues protective order. This will allow possession of a child, even though the parent possessing the child may not be the primary conservator.
Its also possible to receive a possession order after a parent shows they are the biological mother or father. In the state of Texas, the mother of a child generally receives sole custodianship of a child following divorce. This means that the father must prove paternity to get joint custody and ultimately a possession order. Parents may also go to family court mutually for a possession order if they didnt get one after a divorce.
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Who Can File A Sapcr
Each SAPCR case is different and dependent on that individual childs needs. Many parties are able to file a SAPCR. Here are some examples of entities that can file a SAPCR:
- The childs parent
- An individual with visitation rights to the child
- A foster parent or guardian of the child
- A childs relative
- A childs grandparent
- A government entity
Who Will Get Custody Of Our Child And How Is Custody Determined In Texas
The court will determine possession and access to the child/children based on the best interest of the child.
In determining the best interest of the child, the court will consider evidence relating to a wide array of factors including: physical and emotional needs physical and emotional danger stability of home plans for child cooperation between parents parenting skills who was the childs primary caregiver the childs preferences if the child is 12 or older geographic proximity of the children keeping siblings together false reports of child abuse and fitness of each parent .
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Is There Such A Thing As A Standard Custody Plan
In Texas, there is 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
- Alternating holidays
- A longer period of time over the childs 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
- 42 days over the childs summer break
- The childs spring break
These orders may be modified to be in line with a childs best interest. One reason why a court may modify an order is if a parent previously had little to no contact with a child, and the child 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.
How Do Courts Determine Child Custody In Texas
Ultimately, the court decides which parent or what living situation would be in the childs 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 doctors appointments?
- Who took the child to extracurricular activities?
- Who met with the childs teachers and attended school events?
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Lawyer Helping Clients Fight For Their Parental Rights In University Park Highland Park And North Dallas
Child custody, known under Texas law as conservatorship, is often the mostcontentious issue in couples going through adivorce. The general rule is that child custody orders will be made to fit thebest interests of the child. This means parents interested in maintainingcustody must prove that granting such would be the most beneficial tothe child. The Dallas child custody lawyers at Clark Law Group has yearsof experience helping parents fight for their parental rights. Our Dallaschild custody attorneys help withchild support. If you have any questions, call our firm.
Filing For Child Custody
You must follow a certain protocol to file a child custody order in Texas. This starts with filing a Suit Affecting the Parent-Child Relationship form with the clerk of court in the county in which your child lives. This form tells the court and the other parent the orders you want made in respect to custody and visitation.
The filing fee varies by county, so ask the clerk of court the amount, and make the payment at the time of filing. You can file in person or online via Texas E-File. The other parent then has to be officially notified that the petition has been filed. You cannot serve the other parent yourself, so it will be done in person by a sheriff, constable or private process server instructed by the court. The other parent does not have to sign anything, but the server will complete a Return of Service form that states when and where the other parent was served and send this to you or to the court.
You must attach a copy of the Acknowledgment of Paternity form for each child to your filing. This is the easiest and fastest way to establish paternity and is signed by you and the other parent to identify the child’s biological father as her legal father. To get this form, complete an Acknowledgment of Paternity Inquiry Request and send it to the Acknowledgment of Paternity Registry of the Texas Vital Statistics Unit, or contact the Vital Statistics Unit at 776-7111.
A father can request genetic testing to establish paternity if this is in question.
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Modifying An Existing Custody Order
If you already have an existing custody order in Texas which splits time and rights between you and your child’s other parent, you should seek to modify that order.
1. Get a copy of your existing child custody order.
You need to view your existing order to determine the current custody arrangement. While Texas favors an equal split, it doesn’t always work out that way. You want to make sure you have your facts straight.
2. Draft a motion to modify the existing custody order.
Once you’ve determined how your existing custody is set up, you need to modify that order by filing a motion, which will include reasons as to why your existing custody order should be modified. You must also include detailed information about how your child’s other parent is harming your child or a detriment to your child’s well being.
3. Schedule your motion for a hearing.
Now that the court has your motion, you need to schedule a hearing. This can take some time before you’re able to get in front of the judge. But it’s a necessary step so both you and your child’s other parent can make arguments.
4. Argue your motion.
This is the time where you can present evidence to the judge about why you deserve full custody. You should also be prepared to make any counterarguments to what your child’s other parent might say. They will have time to make their case during the hearing why the existing order should not be modified.
How To Get Full Custody In Texas
Section 20A.02 or and
It is common for parents who are unfamiliar with the court system to believe naively that all he or she has to do is walk into court and tell the judge why the other is a bad or unfit parent and the judge will make a decision right there to give full custody. This assumption could not be further from reality.
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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.
How To File For Child Custody In Texas
Before you file, child custody laws in Texas require you to prove that your childs home state is Texas. This means that your child must have lived at least six consecutive months in Texas with a parent or legal guardian before filing.
If your child meets the criteria, you should begin filling out the necessary paperwork with an experienced Texas family law attorney.
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How To Request A Custody Modification In Texas
To request a change to an existing conservatorship or possession and access order, you have to file a written request to modify custody. Texas refers to this as a “Petition to Modify the Parent-Child Relationship.” The person filing the motion or request is called the “petitioner” and will file that accompanying forms with the clerk of the county district court which issued the current order. The parent who receives the motions is known as the “respondent.”
How the case proceeds from there will depend on whether the other individuals affected by the order agree to the changes you’re seeking.
Obviously, if everyone agrees to the proposed change, it makes for much smoother sailing. The respondent can sign forms agreeing to the modification. As an uncontested case, it will involve a brief court appearance so the judge can review the paperwork and determine whether the request is in the child’s best interest.
In cases where the respondent files papers objecting to the request, the court considers the case contested, and will set a date to hear testimony from both sides. At the end of the hearing, the judge will decide whether or not to grant the modification.
You can find the necessary modification forms and instructions on the TexasLawHelp.org website.
In that situation, you’ll have to provide the court with an affidavit . In addition to setting out the facts supporting the request, the affidavit must contain at least one of the following contentions: