Child Custody Decisions in Texas

Texas law encourages parents to work out custody arrangements without bringing the issue to court. If parents can’t agree, Texas courts make custody decisions based on what is in the “best interest” of the child. The court will presume that joint legal custody, called “conservatorship,” is best unless you can prove otherwise.

How Do I Get Child Custody and Visitation Rights?

A couple with children may have to make several important decisions during a divorce or separation proceeding, including deciding who will gain custody of the children, what type of custody rights each parent will retain, and what arrangements will be made regarding the children’s visitation, depending on the circumstances.

Generally speaking, child custody refers to the legal rights and responsibilities of a parent over a child’s care, control, and upbringing. There are several different ways to split custody rights.

Child visitation, on the other hand, refers to the legal rights afforded to a non-custodial parent.

Therefore, if a parent does not obtain physical custody of a child, they will usually be granted visitation rights. Several forms of visitation rights will also be discussed in more detail below.

Regardless of whether you are seeking custodial or visitation rights over a child, there are two main ways that a party to a divorce or separation proceeding can begin the process:

• By Agreement: The first and more preferred method is by agreement. If both parties are willing to cooperate, the parents should discuss child custody and visitation arrangements without the involvement of lawyers or the court. This will allow them to reach a mutual agreement. If possible, the parents should draft a written agreement outlining the custody conditions and a basic visitation schedule.
• By Court Order: In cases where the parents cannot agree on their own, or if the child’s well-being is in jeopardy because of one or both of the parties’ behavior, then a court will have to intervene and make decisions about the arrangements. Typically, when the court is asked to make such a decision, the parents will be given the opportunity to present their side of the story.

Lastly, a court must approve the final child custody agreement or visitation schedule, whichever method is selected. If the parties can agree on their own, they will have more control over schedules and arrangements.

What is the “Child’s Best Interests” Standard?

In most family law cases where a child is at issue, the court will make decisions based on the child’s best interest standard. It will precede most state child custody laws when finalizing child custody or visitation agreements. However, it is important to note that the factors that the court considers when applying the standard will differ from state to state.

As a result of the child’s best interest standard, the law ensures the highest level of protection for a vulnerable class of persons (children). Therefore, a person taking custody of a child must be capable of providing a stable home environment and ensuring the child’s safety and well-being.

The court will consider various factors when determining whether a parent qualifies for custody under this standard, including the parent’s ability to care for the child, the parent’s relationship with the child, and which home would be most suitable for the child’s adjustment or needs.

What are the Different Types of Custody Arrangements?

Several types of custody arrangements exist, as previously mentioned. The types of custody include legal, physical, sole, joint, and bird’s nest. The term custody refers to the rights a parent has over a child.

Types of Custody Arrangements: Legal Custody
Legal custody pertains to the right to decide how a child will be raised, including what school they will attend, what religion they will follow, and what kind of medical care they will receive. A parent can be granted joint or sole legal custody over their child, but joint custody is preferred if both parents cooperate.

In cases where joint custody is awarded or in the event of an emergency, the parent who currently has primary physical control of their child’s location will temporarily retain greater legal custody rights until the other parent can be reached, or if it is a minor issue (e.g., punishing the child for not doing their homework).

Types of Custody Arrangements: Physical Custody
A parent has the right to have their child physically live with them. Since this is where the child will spend most of their time, it is usually considered their home.

Physical custody, however, can be awarded to both parents. In these cases, the child will either split their living arrangements evenly between both parents’ homes, or the parents will design a schedule that will allow alternating periods in which the child will live with them (e.g., spending the summers at one parent’s house and the rest of the year at the other parent’s house).

Types of Custody Arrangements: Sole Custody
Sole custody is when only one parent is granted legal and physical custody of the child. In other words, the parent will be able to make legal decisions on behalf of the child, and the child will physically reside with them.

Usually, sole custody is awarded if the non-custodial parent poses a serious threat to the child’s well-being (e.g., is violent or abusive) or is no longer present (e.g., incapacitated, deceased).

It is important to note that sole custody does not grant visitation rights to the non-custodial parent.

Types of Custody Arrangements: Joint Custody
Joint custody allows both parents to equally share responsibility over certain aspects of their child’s life, including the amount of time a child spends with each of them and the ability to make important decisions about how the child is raised.

Parents can obtain joint legal custody, joint physical custody, or both. It means that they will either share rights to make decisions about the child’s upbringing (i.e., joint legal custody), split the amount of time they spend together (i.e., joint physical custody), or have both rights (i.e., joint legal and physical custody).

Types of Custody Arrangements: Bird’s Nest Custody
In rare cases, parents may opt for “bird’s nest custody.” This type of custody is when a child dwells in the same residence, but the parents take turns living in and overseeing the home.

Even though this arrangement makes it easier for a child to adjust since they will not have to split their time between two homes continuously, it can also make it more difficult. This can happen for instance if the parents disagree on certain household issues or fail to leave when the other parent is supposed to live with the child.

What Does the Court Consider in Assigning Custody?

When deciding which parent should have primary physical custody, Texas courts usually consider the following:

• The physical and mental health of the parents
• The health, welfare, and safety of the child
• The history of contact between the parents and the child
• How close the parents live to each other
• Evidence of child abuse
• The preferences of the child if it’s 12 years or older

What Happens When the Court Has Made a Decision?

The judge signs the custody order, which is filed with the court clerk. The agreement now binds both parents. The other parent may bring the issue before the judge if one parent fails to follow the custody order.

Should I Contact a Texas Lawyer Regarding my Custody Issues?

If you have concerns about who will make decisions for your child, it will be vital that you get an experienced child custody lawyer to help persuade the court what the right arrangement is for your child. A good Texas child custody lawyer will help you do this.