I. What is Child Custody
Legal child custody is having the obligation and the right to decide on matters regarding the upbringing of a child.
A parent who has legal custody can make decisions about where the child would go to school, his or her medical care and religious preference, for instance.
In most cases, clients want full child custody in Texas. Unfortunately, full custody does not exist in Texas, at least legally. In fact, the term “custody” does not even exist in the Texas Family Code. The closest thing to “custody” in the Texas is conservatorship.
II. Types of Custody
There are primarily two types of conservatorships that exist in Texas:
- Joint Managing Conservatorship, and
- Sole Managing Conservatorship.
Managing Conservatorship can be legally given to both parents of a child if they are not married – no longer married or have never been married. It involves rights, duties, and decision making powers.
When someone is a Managing Conservator it means that he or she is basically the legal guardian of the child, protecting the child and managing finances and other things with the child’s best interest in mind.
Usually, both parents will become “Joint Managing Conservators” of their children after the divorce and therefore share in those rights, duties, and decisions similarly to how parents who are still together would.
There are also instances where one parent is chosen as “Sole Managing Conservator”.
This can happen if there are extreme circumstances involving the other parent, or that the court feels that the best interest of the child would be harmed if one of the parents had some of the rights associated with a managing conservator.
You may also encounter the term “Possessory Conservator”. If one parent is named the Sole Managing Conservator, the other parent is usually named the “Possessory Conservator”. If a third party is named the “Sole Managing Conservator” then both biological parents are “Possessory Conservators”. A Possessory Conservator still has the rights of a parent, but will not have the final say on most decisions.
III. Child Custody Process
The state of Texas follows and proper procedure when it comes to filing for child custody. The starting point of this process is by filing a petition with clerk of the court using SAPCR or the Suit Affecting the Parent-Child Relationship form. The exception is when the parties went through divorce because SAPCR automatically applies in divorce cases.
After filing this petition a paying the proper fees, official notice of the filing will be given to the other parent or party. The latter will then be given chance to file an answer to the petition, counter petition, or denial with the courts. Additional documents and completion of other forms may be further required before moving the case to mediation and/or trial.
Gathering evidence pertinent to the custody case should be done as soon as possible. The pieces of evidence should help in proving your ability to take care of the children in all aspects such as emotionally, physically and financially because this will aid the judge to come up with a decision that best serves the interests of the children.
Several factors are taken into consideration in determining custody cases. These factors include but are not limited to the parent’s overall health, both physical and mental, the relationship of each parents with the children, and the financial capacity of the parents.
IV. Who Gets Custody
One of the main issues that need to be resolved in any child custody or conservatorship case is the primary residence of the child. This is usually resolved by either the agreement between the two parents or a decision from the judge after a trial.
There is an old stereotype about the mother being the primary conservator – in other words having the primary custody of the child.
While this is often the case, it is only because the mother usually wants to be the primary conservator and acted that way while the parents were still living together.
If you are the father and you want to have primary custody or conservatorship of your child, you have the right to fight for it.
You can provide the court with a history of caring for the child as much as your ex-wife did to increase your chances. If during the marriage you’ve spent most of your time working and you basically did not spend much time with your child, don’t expect the court to award you with the primary conservatorship.
You have to bring ample evidence that you can be the primary parent without the child getting neglected or left alone most of the time.
In typical cases, the child will spend the first, third and fifth weekend of every month with the possessory conservator parent. These weekend visits will start at 6 PM on Friday and it will end on 6 PM on Sunday. The Texas Family Code provides the 6 PM pick-up and drop-off time but you can make adjustments with your co-parent most of the time.
Child visitation schedule conflicts and disagreements often come up all throughout the year but they’re exceptionally worse during the holidays. It is important to stick to pickup and drop-off times and to be considerate of your co-parent. Keep communication lines open especially during chaotic times such as the holidays.
If you apply the golden rule in your co-parenting relationship, there is a huge chance that you’d be able to enjoy each moment you spend with your child in peace. In the end, your child will benefit the most if you keep a harmonious co-parenting relationship with your ex-spouse.
It is advised that you keep copies of your court orders, especially the most recent ones so that you can have a guide if you need to refer to them later on.
VI. Modification of Child Custody
Either of the parent of the child may file for the modification of the child custody order. There are certain cases where a person who is not either of the parents of the child may file for the modification. The modification case must be filed in the county of Texas where the order was made. If the child has been living in another state for the last six (6) months, discuss this matter with a lawyer.
Usual fees such as “filing fee” must be paid and in other cases, the person who files must pay the “issuance or service fee” if one of the parents needs to have the other parent served. These fees are, of course, waivable as long as the petitioner files a Statement of Inability to Afford Payment of Court Costs. Keep in mind that these fees vary from county to county in Texas.
A person who wishes to file a petition for modification does not need to have a lawyer for this case. It is, however, advisable to discuss this matter with a legal expert so they can explain the options and rights of the parent.