child custody during divorce

Who Gets Custody of the Child while the Divorce is Pending?


A divorce proceeding could take some time, depending on the circumstances surrounding the petition. If the divorce is uncontested, then there would only be a resolution of details including custody, child support and the distribution of property. 

It would be more complicated if it were a contested divorce or a fault-based divorce; there would be a burden of proof from one side. There could also be a deliberate attempt to delay the proceedings if one spouse refuses to sign the divorce papers. In these and similar cases, who would have custody of the child?

Texas Law on Child Custody

You can ask the court to make a temporary custody order if you’re unhappy with your child’s current living situation. The first step is to file a motion requesting for joint custody or to have the court set a visitation schedule. 

The judge has to make a crucial decision for the welfare of the child. Specifically because the divorce proceeding or trial could have some tense moments. Thus, the judge has to consider all factors, some of which are:

The one who acts as the primary caregiver. This is the person who addresses most or all of the children’s daily needs like food, clothing, school transportation, and hygiene. 

The judge will also determine which parent would have more time to spend taking care of the children. Aside from the physical needs, the judge will also consider the emotional well-being of the child. Which parent has a stronger emotional connection with the child? 

Another consideration is the physical home of the parent. Would the child have to be relocated to a place that is very far from his social structure? The last thing a child needs during a divorce proceeding is to be displaced from his comfort zone. The judge will also factor that in. 

No Default Custody Based on Gender

In Texas, there are no laws on custody based on gender. When the judge weighs on his decision, he will look at the considerations objectively and will not have a preference based on gender. Both the mother and father are equal in court. 

There are also many locations where joint custody is the usual setting unless there is sufficient reason to disqualify custody or to reduce the time for one of the parents. If one of the parents is deemed unfit, then they may even lose visitation rights, at least until the divorce proceeds and he/she proves their capacity as a parent. 

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas.

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