Divorce can be a messy, emotional process, but it becomes even more challenging when child custody is involved.  Divorce with custody cases are highly sensitive, as both parents typically want to spend as much time as possible with their children after the divorce.

The Difference Between Legal and Physical Child Custody

When it comes to custody of the children, it is important to understand that there are two separate and distinct types: legal and physical custody.  In most child custody cases, both parents share legal custody, which involves the ability to make decisions about the welfare of your child or children.  This includes where your child goes to school, what religion he or she is, or the type of medical care that he or she receives.  Physical custody refers to where the child lives, and is most often at issue in divorce with custody cases.  In some cases, parents are able to split custody, while in other situations, one parent has primary physical custody.

If you are divorcing and have children, the Moffett Law Firm child custody lawyers can work with you to help you understand your rights to both legal and physical custody.

How Is Custody Determined in Texas?

For many parents, the first question that they ask is how a judge will determine who will get primary custody of their child or children.  In a divorce with custody or any other child custody case, the standard is the best interest of the child.

The Best Interests of the Child Standard

The court will look to what is in each child’s best interest in order to make a custody determination.  This often involves evaluating a number of factors, such as the home environment of each parent, whether the parents can co-parent successfully, the distance between the parents’ homes, each parent’s ability to be a caretaker to the child, the financial and employment situation of each parent, and if the child is old enough, the child’s opinion.  Unless child abuse is involved or other factors are present, most courts will attempt to award approximately equal time to each parent in a divorce with custody case. There may be scenarios where this isn’t possible, however, such as when the parents do not live close together, or where one parent works long hours.

While the “best interests of the child” standard is a subjective one, it ultimately means what is the most ideal situation for the child given the divorce.  In Texas, courts will presume that unless there has been child abuse or neglect, it is best for a child to maintain a relationship with both parents whenever possible.

When Can a Child Give His or Her Opinion about Custody?

Under Texas law, a child has the right to testify to the court about which parent he or she would like to live with when he or she is 10 years or older.  However, a child’s opinion about child custody is just one factor that a court will consider in a divorce with custody case.  As a Houston child custody attorney can explain, a Texas court will still consider other aspects as part of the overall best interests of the child determination.

Parenting Plans for Child Custody in Texas

A parenting plan is a necessary component of any divorce with custody case. This document sets forth the rights and duties of each parent regarding his or her child or children.  This may include information such as the primary residence of the child, making decisions about health care and schooling, paying child support and more.  If spouses involved in a divorce can agree to a parenting plan before starting the divorce process, it will simplify the custody determination. Our Houston child custody attorney can work with you and your spouse’s lawyer to help formulate a parenting plan that works for both parties.

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Child Custody and Child Support in Texas

In divorce with custody cases, many parents are curious about how child support payments relate to child custody.  Child support payments are determined by on a number of factors based on the child’s needs.  Typically, the parent who has primary physical custody of a child will receive child support from the non-custodial parent.  We can help you determine how child custody may impact your child support obligations.

Learn more about how child support is calculated in Texas.

The Role of Mediation in Child Custody Determination in Texas

Increasingly, more parents in divorce with child custody cases are taking advantage of the mediation process as a way to resolve their issues without the time and expense of a full-blown trial.  Mediation is a non-binding process where a neutral third party, known as a mediator, helps a couple decide the details of their divorce.  In many cases, the parties are represented by child custody attorneys.  A qualified mediator can help a divorcing couple come to a decision about the sticking points in their divorce — such as on child custody and support — by offering an outside opinion on the strengths and weaknesses of their case, along with guidance on how a court might rule on various issues.

How Is Child Custody Determined in a Contested Divorce?

In Texas, although the phrase “primary custody” is often used as a shorthand, the term to describe primary physical custody is possession.  Conservatorship is a parent’s right to make decisions on a child’s behalf about matters such as education, health care and religion. The Texas Family Code instructs judges to presume that it is in the child’s best interests to have both parents share conservatorship as “joint managing conservators.”  Possession, or primary physical custody, is then determined based on the best interests of the child.

A judge will look to a number of factors to determine the best interests of the child.  These include, but are not limited to:

  • The health of each parent;
  • The relationship between the child and parents;
  • The child’s age and preferences;
  • The relationship between the parents
  • Each parent’s financial situation;
  • The child’s developmental, emotional and health needs; and
  • Any history of abuse or neglect.

Based on these factors, a court will make a custody determination.  This custody arrangement can later be modified by petitioning the court, typically with the help of a child custody lawyer.

Modifying Child Custody Arrangements Out of Court

It is possible for parents to come to an agreement outside of court where they decide to change their child custody arrangements to better suit their needs or the needs of their child.  In doing so, they can either come to an arrangement and ask the court to approve it or simply make an informal change without any formal modification of the order.

However, according to a child custody attorney in Houston, the danger of this second option is that without any sort of court order, the parent who has possession under the original court order can enforce that order at any time and take the child back.  The court will enforce the order, as it is still valid — and the child’s life will face a significant disruption.  After a 6 month period, this risk decreases, but it is still a possibility.  That is why it is a smart idea to consult with a child custody lawyer before attempting to modify your child custody arrangement with your ex.  He or she can counsel you on the risks and benefits of modifying your child custody order out of court, and help you decide the best course of action for your family.

Legal Requirements to Modify Child Custody Orders

Another option is to ask the court to formally modify the child custody order.  This can be done only if a modification is in the best interests of the child, and if one of three situations exists:

  1. The child, aged 12 or older, has filed a written request with the court;
  2. The circumstances of one of the parents or the child has substantially changed;
  3. The custodial parent has given the child to the non-custodial parent for 6 months or more.

For example, changed circumstances could include accepting a job offer out of state, or accepting a job that requires you to start work early in the morning, leaving your child to be alone to get ready for school.  Relinquishment may occur if you decide to informally change your child custody arrangement, even if you intend it to only be temporary; your ex could argue that your actions are a reason to officially modify the child custody order.

If you are contemplating a divorce that will involve child custody issues, you will need an experienced Houston child custody attorney to represent you.  Divorce with custody cases can be complex, and a seasoned lawyer can shepherd you through the process.  Contact our office today and schedule an initial case consultation.