Confronting the complexities of child custody can seem daunting and emotionally taxing, particularly when your primary concern is the welfare of your child. If you’re a parent in Texas, you may be wrestling with important decisions about securing primary custody, which directly affects where your child lives and the quality of your parent-child relationship. We understand how tough this can be, and we’re here to help guide you through this challenging process.
In Texas, “primary custody” is a phrase that is not an official legal term.
People can mean different things when referring to “primary custody,” so it’s always important to seek clarification about what someone means when using this term. Sometimes, people use “primary custody” to refer to Sole Managing Conservatorship, where one parent is granted exclusive decision making regarding important issues such as education, invasive medical decisions, and psychological and psychiatric treatment of the child.
However, more often the phrase “primary custody” refers to the parent who, while a Joint Managing Conservator, has the exclusive right to determine the primary residence of the child.
As we begin our exploration of how rights and duties are allocated in a Texas suit affecting the parent-child relationship, including a divorce with children, it is important to note the strong public policy of the State of Texas for both parents to be involved in the life of their child.
The judge has broad discretion in making these decisions based on what the judge determines to be in the best interest of the child. It is rare for one parent to be granted the exclusive rights and duties regarding their child, especially when both parents have shown the ability to provide appropriate care for their child. In fact, it is presumed that both parents shall be named as Joint Managing Conservators. However, even when the parents are named Joint Managing Conservator, the rights and duties regarding education, medical care and psychological treatment will be allocated between the parents, such that one parent could have the exclusive decision making authority, each parent will have the independent right to make the decision, and/or decisions will be subject to the joint agreement of both parent.
If the parents are unable to reach agreements regarding their child’s welfare, then it is likely that the judge will give those rights exclusively to one parent, or independently to both parents.
Having “primary custody,” or rather being the parent who has the exclusive right to determine the primary residence of the child, does carry with it some additional presumptions – such as also having the exclusive right to receive child support, and having more time with the children. Regardless of whether you have “primary custody” or not, both parents still have a very important role to play in the upbringing of their child.
How Do Courts Decide on Primary Custody?
The Court’s approach in Texas, as well as in most states, the child’s “best interest” is the primary determinant for courts during custody decisions. This involves evaluating multiple factors including the child’s emotional and physical needs, the stability of each parent’s home, and each parent’s ability to provide adequate care for the child.
Additionally, any evidence of domestic violence, substance abuse or child abuse significantly influences the court’s decision.
Moreover, the court scrutinizes the relationships between the child and other family members, the child’s adjustment to their home, school, and community, and each parent’s willingness and capability to nurture a positive relationship between the child and the other parent. It is crucial to remember that the focus is not on your personal wants, but rather on what is most beneficial for your child.
How Can I Prepare for a Custody Hearing?
The good news is that many cases settle either through an informal settlement process, the collaborative law process or with the help of a mediator, and parents never have to go to court. However, we also understand that is not always the case, and sometimes it is necessary to have the judge rule on the issues. Getting your case before the judge requires that the proper motions be filed, and that notice be given to the other side. If you are asking the judge to rule on interim issues while the divorce is pending (as opposed to a final trial), you will likely have very little time to prepare for the hearing, which is why it is important to understand the process of preparing for a custody hearing.
First, a custody hearing, whether it is a temporary orders hearing or a final trial, is an evidentiary hearing. That means that witnesses will be called to testify, including at a minimum having each party testify. The parties will also offer evidence to support their case. When offering evidence, the judge will only consider evidence that is admissible under the Texas Rules of Evidence. You can help your case tremendously by gathering documents like financial records, school records, medical records, correspondence between you and the other parent (e.g., text messages and emails), and anything else that contains information that may be relevant in your case. Remember, not only are you trying to show the court why the other parent should not be granted primary custody of your children, you are also needing to present evidence about why you should be granted primary custody.
Preparing for a custody hearing can feel overwhelming. You also consider seeking legal counsel. A family law attorney can guide you through the custody process and help you present your case in the best light.
Additionally, you should prepare yourself emotionally. These proceedings can be stressful and emotional. You will be asked difficult questions about your parenting and decisions you’ve made in your personal life. It’s important to remain calm and composed. Remember, the court’s goal is to determine what’s best for the child, not to pass judgment on you as a person.
Key Factors That Influence Primary Custody
Aside from the child’s best interest, there are other key factors the court considers when awarding primary custody. These may include the child’s age and preference, the existing bond between the parent and child, the parent’s ability to provide a stable environment, and the physical and mental health of both the parent and child.
For example, if one parent has been the primary caregiver up until this point, the court may take that into consideration. If one parent has a history of drug abuse or criminal activity, that could also impact the court’s decision. It’s important to understand that every situation is unique and the court will consider various elements to make the best decision for the child.
Can My Child Choose Where to Live?
In Texas, a child who is 12 years old or older can express their preference to the court about where they want to live. However, the court will not base its decision solely on this preference. It’s just one of many factors considered when determining the child’s best interest. The court will carefully evaluate if the child’s preference aligns with their overall welfare.
Parents often misunderstand this rule, and end up causing more harm when they tell their teenager that the teenager gets to decide. This is not correct, and the judges do not want parents abdicating decision making to the teenagers. Regardless of the age of the children, all parents need to be careful when it comes to involving their children in the divorce process.
Children need to be assured that these are adult decisions, and that as parents, you will be working to make the best decisions possible for your children.
What If We Can’t Agree on Custody Terms?
If you and the other parent can’t agree on custody terms, the court will have to intervene. This usually means a more drawn-out process and potentially more stress for all involved. It’s always better if you can come to an agreement outside of court, but if that’s not possible, a judge will make the decision for you.
Judges often rely on experts to assist them in making decisions for their children. These experts can include psychologists or other experts trained to do custody evaluations, where the evaluator will meet with you, the other parent, and your children, and will gather information and make a recommendation to the court regarding your parenting rights and responsibilities. The court may also appoint an attorney to either represent your children (known as an attorney ad litem), or to represent the best interest of your children (known as an Amicus Attorney). Depending on the role of the attorney, this attorney will be involved in the hearings, will meet with your children, and can also be helpful in finding solutions and developing settlement options.
In such cases, it’s important to maintain a positive attitude and remain cooperative. Displaying hostility or lack of cooperation with the other parent can negatively impact your case. If you find it challenging to communicate with the other parent in a constructive manner, we highly recommend the book, “BIFF for Coparent Communication: Your Guide to Difficult Coparent Texts, Emails and Social Media Posts,” by Bill Eddy, LCSW, Esq. Learning how to navigate high conflict communication is a great skill that will serve you well with your coparent, as well as other areas of life. Ultimately, the court wants to see that you’re willing to work towards the best interest of your child, even if it means compromising.
When is Mediation the Better Option?
Mediation can be a great alternative if you’re struggling to agree on custody terms. It involves a neutral third party who helps facilitate discussion and hopefully, resolution. In mediation, you and the other parent have the opportunity to express your concerns and negotiate in a less formal setting than a courtroom. This process can save time, money, and emotional strain.
During mediation, each party has the chance to present their side of the story. The mediator’s job is to help both parties reach a compromise that serves the child’s best interests. It’s a more collaborative and less competitive process than traditional court proceedings. Often people worry that mediation will be a total waste of time, but in fact find that attending mediation was the best use of their time. A lot of problems can be resolved with an effective mediated settlement agreement that ultimately disposes of the pending litigation and allows the parties to reach a resolution that is uniquely tailored to the needs of their family.
Don’t Face Child Custody Challenges Alone
We understand that dealing with child custody matters can be one of the most challenging experiences you’ll ever face. But remember, you’re not alone. At Hargrave Family Law, we’re committed to guiding you through every step of this process with compassion and professional expertise. Our team of experienced attorneys has a deep understanding of Texas family law. Don’t let the complexities of the legal system overwhelm you. Reach out to us today and let us help you secure the best possible future for your child. Trust us, we’re here for you.
