Frequently Asked Custody Questions
Sole Custody refers to a situation where you or your co-parent are given exclusive decision-making authority when it comes to specific areas of your child’s life. This is done to exclusion of the other parent. This does not mean the parent who does not have sole custody of the child will not have visitation rights. Sole custody relates to conservatorship rights and duties as opposed to possession, access or visitation.
Joint custody refers to when you and your co-parent share in decision making authority in relation to your child. Examples of this shared decision-making authority are the rights to consent to medical treatment, psychiatric treatment, to represent your child in legal actions, make decisions regarding their education and the right to services and earnings of your child. It is presumed that in a Texas family law case it is in the best interests of your child that you and your co-parent have joint custody of him or her.
When you and your co-parent create a custody schedule for your child then you are agreeing to divide your child’s time between the two of you. Each day of the year is accounted for in a custody schedule. In many cases this is known as a Possession Order. Typical visitation for a non-primary conservator looks like first, third and fifth weekends of each month in addition to extended periods of possession in the summer and alternating holidays with the primary conservator.
Changes can be made after an initial child custody agreement. This is otherwise known as a Child Custody Modification. A modification can be granted by a family court judge if: 1) there has been a material and substantial change in circumstances for a parent or child since the prior order was issued and 2) the requested modification is in the best interests of your child. Examples of child custody related matters that can be modified include child support, possession orders and conservatorship rights and duties.
The presumption under Texas law is the parents act in the best interests of their children when making decisions on their behalf. Without a child custody order in place which contains a possession order, visitation can be denied by a parent. However, if possession and visitation orders are in place via court orders a denial of visitation can be addressed in an enforcement case as the denial is likely a violation of the court orders.
Grandparents do not have custody rights to a grandchild. However, if a child custody case has been filed in relation to that child, then the grandparent can file to intervene into the lawsuit. Typically, a grandparent must be able to show that he or she has a substantial amount of past contact with the grandchild and he or she has cared for the grandchild on for an extended period prior to intervening into the previously filed case.
There are two ways child custody is determined in a Texas family law case. The first and most common method of determining custody issues is by agreement of the parents of a child. Parents can come together in mediation or during informal settlement negotiations to settle matters related to children. In the alternative, if a settlement is not possible then the parents would proceed to a trial where a family court judge would issue orders related to custody after evidence is presented by both parents.
Parenting skills can be challenged in a variety of ways in a Texas family law case. Termination of parental rights is the most serious consequence of being found to be an unfit parent. If a parent is found to be incapable of preserving the well-being of a child, then his or her parental rights can be terminated. Even in a typical child custody or divorce case parental rights can be restricted if it is found the parent has acted in a manner that is not in the best interests of that child.
If a child is 12 years of age or older, he or she can speak with the judge in the judge’s chambers regarding their preference regarding primary conservatorship. This can be done by motion by either parent. The judge in this instance must allow the child to speak with him or her as requested by a parent. A child under the age of 12 might be able to do the same only if the judge allows the motion to proceed.
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) you can file for emergency custody on a temporary basis in a state other than Texas under a few different circumstances, only if Texas is the child’s home state. 1) The child is present in that state 2) the child has been abandoned or needs emergency protection or 3) because the child (or a sibling or parent of the child) has been subjected to abuse or mistreatment. A Texas court must recognize and enforce a child custody order from another state.
