Practice Areas
Child Custody
A Texas child custody case determines much more than who the child lives with when their parents divorce. If the parents cannot agree on a parenting plan, the court will decide which parent determines the child’s primary residence, who will make important educational and medical decisions, when the child will be with each parent, and how the parents will share the responsibilities of raising their child and who will pay child support in what amount.
Texas law refers to custody as conservatorship. Some parents seek sole managing conservatorship or the exclusive right to make particular decisions. Others want to share parenting time and decision-making as equally as their circumstances permit. Between those positions are many arrangements that can be designed around the needs of a particular child and family. The vast majority of the time, the court will establish the parents as joint managing conservators but will apportion rights to individual parents on a case-by-case basis.
FAQs
What Does a Texas Court Consider in a Child Custody Case?
The controlling consideration is the best interest of the child. Among the practical issues a court may consider are:
- The child’s day-to-day needs. Who gets the child to school, maintains routines, administers medication, handles homework and discipline, and attends to the child’s educational and developmental needs?
- Safety concerns. Is the child exposed to family violence, substance abuse, unsafe supervision, or other environmental risks? Is there CPS involvement or criminal history? Perhaps a dangerous step-sibling, a parent with a dangerous occupation,
- Each parent’s abilities and circumstances. Work schedules, organization, judgment, temperament, priorities, and each parent’s demonstrated ability to care for the child may be important.
- Stability. Courts may examine the safety and stability of each household, available supervision, and the consistency each parent can provide. Are there chronic absences and tardies from school? Is one parent emotionally unstable? Does one parent have unpredictable outbursts, have trouble getting out of bed or staying employed, or have a history of unstable adult & romantic relationships?
- The history of parenting. What the parents actually did before and around the time the case was filed can matter. Which parent maintained the child’s routines, managed the calendar, and met the child’s nutritional, educational, and discipline needs? The age and needs of the child—a breastfeeding child has vastly different day-to-day needs than a child with a driver’s license, although both can be equally demanding upon a parent.
- The ability to co-parent. Courts may consider whether each parent can manage conflict appropriately and support the child’s relationship with the other parent when doing so is safe and appropriate.
- The desires of the child. When a child is 12 years or older, the court has to interview him or her on matters of custody provided a parent requests it. Because out of court statements made by a child are hearsay and not admissible, it can be very hard, but not impossible, to get this kind of information before the court. It can also be inferred by circumstantial information such as testimony of the child’s therapist, photos and videos of the child and other testimony. On the flipside, maintaining that a child wants to live with you will draw the courts unwanted attention over concerns that you are manipulating the child, putting the child in the middle, and damaging the relationship between the child and the other parent.
- The emotional and psychical needs of the child now and in the future. This factor includes children with special needs, such as autism, down syndrome, learning disabilities, cerebral palsy, diabetes and others. If a child needs close attention to blood sugar levels, and has a full schedule of doctors visits, a court will consider these circumstances in making orders.
What Does the Court Actually Decide?
Important custody rights can include who determines the child’s primary residence and how decisions concerning education and significant medical, dental, psychological, and psychiatric care will be made. These rights may be shared, independently exercised, or allocated primarily to one parent depending on the circumstances. Courts typically make decisions on a case-by-case basis, and they almost always make their decisions based upon the relationship of the parties, if they play games with one another, and if one or both are incapable of keeping the child out of the middle.
Although frustrating, the reality of what a family court can do in the state of Texas is limited. It cannot award a parent more rights or possession simply because they have more money, because they live a more traditional life, because they were not the cause of the divorce, because they have the better job, because they did not remarry and bring in other children, because they have better vacations, and so on.
Why Do the Early Stages of a Custody Case Matter?
Many custody cases begin with a temporary orders hearing, sometimes within weeks after the case is filed. At that stage, the court may establish where the child will live, the possession schedule, temporary decision-making rights, and child support while the case is pending. It is very likely that the temporary schedule becomes the final schedule unless the temporary schedule is demonstrably dysfunctional. Obtaining our client’s goals in that first temporary orders hearing is critical for reaching the long-term outcomes. Courts are hesitant to change a child’s routine more than once.
This makes early preparation important. Useful evidence often comes from ordinary life: school and medical records, calendars, communications between parents, work schedules, photographs, witnesses, and evidence showing who has actually met the child’s daily needs.
Our role is to identify the client’s goals, determine which facts will matter to the court, gather the evidence needed to establish those facts as quickly as possible, and develop a strategy for temporary orders that will carry through trial. Sometimes the appropriate solution is a carefully structured agreement. Other cases require the court to decide disputed facts. In either situation, the focus should remain on an arrangement that can work for the child and family after the case is over.
Does My Child Get to Choose Who They Live With?
Texas law provides that a Court must interview a child who is over 12 years of age “to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence.” This law does not provide that the Court has to enter a ruling based on the child’s wishes.
It is important to have a good feel for what the child might express to the Court. To begin with, having a child interviewed by a judge is presumed to be harmful for the child. It’s become a core memory in the fabric of that child’s childhood. One strategy is to play up the fact that one parent is putting that child in that position. Oftentimes, we will request hearings before the interview so that the judge can get a background into that parent’s abusive tactics.
We have represented a client who underappreciated the significance of their child’s interview and was shocked (so were we, frankly) that the Court switched custody on the day the child was interviewed. Sometimes we learn what the child says in the interview; sometimes not.
While parents have a constitutional right to possession of and access to their children, it is possible for a relationship between a parent and child to be so bad that a judge feels comfortable changing primary custody or modifying the possession schedule if the child reasonably expresses legitimate reasons to change.
That being said, we have represented parents who were not successful in reaching their goal after the child was interviewed because the judge determined that the child had been coached to make false accusations or the child had their own inappropriate agenda (a 4-year-old told the judge “my mom stabbed me with a knife” or “my mom says she will let me graduate early and move in with my boyfriend if I live with her”).
Even if the child rationally makes a case in his or her interview, his or her desire still has to be balanced with what is in the child’s best interest. For example, we have represented a parent whose home was extremely rigid and the 15-year-old wanted to live with the other parent, who was more likely to let the child have a later curfew, etc. The court in that case had to balance the 15-year-old’s need for discipline and structure against his need for independence.
Can I Have My Custody Case Heard by a Jury?
Yes. A jury can decide questions of joint vs. sole conservatorship, who has the right to determine the primary residence, and what a geographic restriction would be on the parent who has the right.
Having a jury trial hear these issues is rare, although very worth it in select situations. A jury will bring a bias; however, in our experience, juries work very hard to get it right. There are a handful of reasons why you would not want your trial judge to decide the case for you, usually because the judge has inappropriately pre-decided your matter or because the voters simply elected the wrong person.
Because the trial court judge has extreme discretion to determine what is in the best interest of the child, and the chances of a successful appeal are low, asking for a jury is often totally justified.
On the other hand, sometimes a party will request a jury because they have nothing to lose. In this situation, the other party needs to keep their wits about them and have competent counsel to read the chess board and be as efficient as possible. Asking for a jury is often a tactic designed to wear the other party down while getting as many last-ditch minutes on the stage as possible.
What Relationship Does Custody Have to Child Support?
Most judges would say that child support is separate from custody. But in all practicality, that is just not true. Yes, it is possible and legal for a court to name one parent the primary parent and also order the primary parent to pay the possessory parent child support. The reality is, though, that the possessory parent is probably going to pay child support and medical reimbursement to the primary parent.
Of note is that, with the growth in possession schedules that are closer to 50/50, courts are increasingly ordering offset child support. That means that child support is calculated for each parent according to their net resources (essentially their income, but sometimes their assets), and then the difference is ordered to be paid by the parent with the greater income. The cap on net resources of $11,700 still applies in this context.
For reference, assuming a parent has a salary of approximately $190,000 per year, which is essentially at the cap, that parent’s child support would be $2,340 for one child, $2,925 for two children, and $3,510 for three children. Different calculations apply if there are other children not of this relationship. This means if you make $290,000 annually, the child support does not go up. Don’t breathe too much of a sigh of relief because child support does not realistically cover the expenses of a child. It might feel like a lot, but arguably, your car payment is more.
Examples of Conservatorship Orders Are:
- Parents awarded joint managing conservatorship but one parent makes all education decisions, including enrollment.
- Parents awarded joint managing conservatorship, but one parent is awarded the right to determine the primary residence in another state.
- Parents awarded joint managing conservatorship but have to consult at least 14 days prior to making any psychological decisions, including changing therapists.
- Parents awarded joint managing conservatorship, but if they cannot agree on invasive medical decisions, then the child’s pediatrician decides.
- One parent awarded sole managing conservatorship based upon the other emotionally abusive parent’s behavior, and the abusive parent is restrained from attending medical appointments of the child.
- One parent awarded sole managing conservatorship but is restricted to a geographic location and cannot move out of it and still retain sole managing conservatorship.
- Parents named joint managing conservators but neither parent is given the right to determine the primary residence. Instead, the child’s residence is restricted to a geographic location. Neither parent has the ‘upper hand.’
- One parent given the exclusive right to make decisions regarding the child’s education; however, the child’s school is established at a certain school or pyramid.
- Parents awarded joint custody but one parent got to make medical decisions and psychiatric decisions, while the other parent got to make school decisions and psychological decisions.
- When parents cannot agree on extracurriculars, a court can decide that one parent picks the fall extracurricular activities and one picks the spring extracurricular activities.
- Ordering the joint managing conservators to attend parenting facilitation, to take parenting classes, and to use communication apps to work through and avoid conflict.
The court also determines a possession schedule and may order child support and medical support. Possession can follow a standard schedule, provide substantially equal parenting time, or be customized. Professional schedules, travel, distance between households, a child’s age, medical or educational needs, and safety concerns can all make a tailored schedule appropriate.
Brief Examples of Possession Schedule Orders Are:
Standard Possession Schedule:
- One parent (ordinarily possessory parent) has:
- 1, 3, 5 weekends during the school year from Friday at school release to Monday at school start plus every Thursday during the school year from school release to school start.
- 1, 3, 5 weekends in the summer from Friday at 6 until Sunday at 6.
- 30 days in the summer.
- Every other Thanksgiving, Christmas, and Spring Break.
- The other parent (ordinarily ‘primary parent’) has:
- All other time during the school year.
- One of 1, 3, 5 weekends in the summer of the parent above.
- A weekend inside the 30-day period of the parent above, provided notice is given.
- Every other Thanksgiving, Christmas, and Spring Break.
- Modifications—sometimes parents will agree to add a Wednesday overnight adjacent to the second and fourth Thursday for added time to the possessory parent. In this case, it will look very much like the 2-2-3 schedule below.
Fifty-Fifty Possession Schedule
- Week On/Week Off year-round with every other Thanksgiving, Christmas, and Spring Break, plus options to extend the weeks in the summer to accommodate travel.
- 2-5: One parent has every Monday-Wednesday, the other parent has every Wednesday-Friday, and they alternate weekends so that the parent with the weekend preceding the Monday-Wednesday actually has a period of five days and the parent with the Wednesday-Friday preceding their weekend also has a period of five days. This schedule would also have every other Thanksgiving, Christmas, and Spring Break, plus options to extend the schedule in the summer to accommodate travel.
- 2-2-3: Each parent has alternating Monday-Wednesday and alternating Wednesday-Friday so that neither parent has more than three days. This schedule would also have every other Thanksgiving, Christmas, and Spring Break, plus options to extend the schedule in the summer to accommodate travel.