Types of Child Custody
There are different types of child custody. The different types of custody are physical custody, legal custody and sole custody. Each of the types of custody can be divided further. Physical custody is typically where the child will live. Physical custody can be granted to one parent or both parents. Sole physical custody means that one parent has physical custody and the child will live with that parent. The parent with sole physical custody, known as the custodial parent, will be the one responsible for day-to-day activities of the child. The other parent, the non-custodial parent, can have visitation rights. Joint physical custody means that both parents share physical custody. Both the parents are called custodial parents and will be responsible for day-to-day activities of the child. The courts may grant joint physical custody when the parents live close to each other. Typically, the court will determine a custody schedule for the activities in joint physical custody cases.
Another type of custody is legal custody. This gives the parent the right to make decisions on child rearing. For example, the parent with legal custody will make decisions such as where the child will go to school, medical care, religion, etc. Both parents can be granted joint legal custody, which means that both parents make the decisions together. Joint legal custody will typically only be granted if it is in the best interest of the child. For example, if the parents do not communicate well with each other, the court would be more likely to grant sole legal custody to one parent.
Summary of the Child Custody Laws in Texas
Texas promotes the idea of giving both parents an equal amount of time with the child unless there are certain circumstances, such as history of abuse. The idea of both parents being involved in the child’s development is determined to be in the best interest of the child. The presumption in Texas is typically Joint Managing conservators of the child. This will split the responsibilities between the parents equally. Another role a parent may have is Sole Managing Conservator of the child, which is physical custody to one parent. This parent would typically have legal custody as well. A third role a parent may have is Possessory Conservator of the child, which is visitation to a parent, which means that the parent typically will not have the power to make decisions. The parents may come to an agreement on the custody of the child outside of court or the court may determine custody. If the parents agree on custody of the child, the court will have to approve the agreement. Typically, the court will approve most agreements. When the court decides custody of the child, the judge balances the qualifications of the parents to determine the best interest of the child.
Joint Managing Conservator is the presumption in the state of Texas. This promotes the best interest of the child because it gives the child the ability to interact with both parents. This option does divide the responsibilities equally, but is not always joint physical and legal custody. The court may decide which parent has legal custody or the decision making power. The court may also decide which parent’s house will be the primary household of the child or physical custody. Since this is the presumption in Texas, the court will likely grant Joint Managing Conservatorship unless it impairs the child’s physical health or emotional development. Under this option, the parents will have to work together for the best interest of their child. Therefore, this option may lead to problems if the parents are unable to do so.
Texas has schedule limitations for situations where a parent is granted visitation. The reason for this is because it allows both parents to be involved in the child’s life. For example, the court will require an amount of time for the parent to spend with the child on weekends, holidays, and vacations. The time required might be different based on how far the parents live from each other.
Once the child has reached the age of 12, the child may request where he/she wants to live, but the court must approve the request.
Procedural Process for Obtaining Child Custody in Texas
The parents may come to an agreement out of court on child custody and can request the court to approve it. For example, some parents may decide the custody of the child using mediation. If the parents cannot reach an agreement outside of court, then they can file a petition in court. This petition will typically state what custody the parent seeks and the reasons. After a few weeks, there will be the first appearance in court. This is not a hearing and the judge uses this time to ensure the child’s safety and set up a temporary order of custody for the child. At this time, a legal guardian for the child may be appointed to represent the best interest of the child. Approximately a week later, there may be a second appearance to discuss the findings of the legal guardian. At this appearance, the judge may also hear what both parties are seeking in terms of custody. In addition, the court may order or request psychological evaluations of the people involved in the case if necessary. The process of getting a psychological evaluation may take a while. Therefore it can take a couple months for the psychologist to provide a report to the court. Once the report is filed in court, the attorneys will discuss the report with the legal guardian of the child. This meeting may determine whether or not the case will go to trial. For example, if the guardian and the evaluation both agree that a parent is not a fit parent, there might be no reason for the trial.
A trial is set a few weeks later if an agreement cannot be reached between the guardian and the evaluator. The trial can last several weeks depending on the case. At trial, the judge will make the decision based on the evidence presented by the parties.
Parental Visitation Rights in Texas
Texas has a schedule that the non-custodial parent must follow for visitation. This is in the best interest of the child because it gives the child a substantial amount of time with both parents. This schedule is typically for children over the age of three and there is not a set schedule for children under the age of three. The typical schedule allows visitation on the 1st, 3rd, 5th weekends of each month beginning at 6pm Friday and ending 6pm Sunday; Thursday night from 6pm until 8pm; Summer, which is typically 30 days; Thanksgiving and Christmas are alternated every year; Mother’s Day weekend the mother will take the child; Father’s Day weekend the father will take the child; and spring break is alternated every year. This is a general schedule, but may be altered depending on the individual case or on a parent’s request.
Factors in Child Custody Decisions
The court considers several factors in making its decision, which are in the best interest of the child. One factor the court looks at is the request of a child 12 years of age or older. Another factor is the environment that is the best for the child to live in. A third factor is the education environment that would be best for the child. Fourth, the court will consider any medical conditions a child has. Fifth, the court will consider the responsibilities that the parents were involved in before the separation, for example, if the mother was primarily responsible for the feeding of the child. Sixth, the court may consider how the parents get along. Seventh, the emotional bond that the parent shares with the child.
Modification of Child Custody
Child custody orders may be modified for several reasons. For example, re-marriage of a parent, loss of job of parent, physical or mental change in parent or child, change of location for the child, danger for the child in the environment, or evidence of bad parenting. The modification must be in the best interest of the child. There must be a substantial change in circumstances from the time the first custody order was signed. A child that has reached the age of 12 can ask the court for a modification based on his/her preference.
Noncompliance with Child Custody Order in Texas
If a parent is not complying with a child custody order, the other parent may ask the court to compel him/her to do so. Texas requires that the parents work together for the best interest of the child. Even if parents live in separate states, they must work together to fulfill visitation orders. In addition, a parent may not interfere in another parent’s visitation rights. For example, a mother may not deny her child from visiting the father when he has the right to visitation. Child support does not affect a parent’s right to visitation; therefore, a parent may not deny the parent visitation if a payment is not made. A parent may ask the court to enforce his/her child visitation when the other parent interferes with it.
Parent with Custody Moving from Texas
If one parent relocates but is it not very far from the other parent, it is the parent’s responsibility to continue to follow the visitation schedule that is set forth by the court. If the parent’s move causes a great distance between the two parents, this may qualify as a substantial change that can cause a modification in the child custody order. In this case, the visitation schedule that was set up by the court will be modified to consider the best interest of the child. Some of the factors to consider are the child’s education, social life, the parent’s environment, etc. The court’s main objective will be to continue to have the equal support of both parents in the child’s life. Therefore, if the child’s education cannot be disturbed during the school year the non-custodial parent may keep the child for a longer period of time in the summer. The custodial parent must notify the non-custodial parent and make the modification of custody before they move otherwise the parent can face criminal charges of kidnapping.
Child’s Decision in Texas
A child of 12 years of age or older can request which parent the child wants to live with and have his/her primary residence with. The request must be written and filed for approval in the court. The court will consider this request but ultimately make the decision based on best interests of the child.
Rights of Grandparents in Texas
Texas recognizes child custody rights for grandparents if it is in the best interest of the child. A court can grant visitation rights for the grandparents. There are certain factors that the court will consider in determining the visitation. The court may grant visitation or custody to grandparents if the parents are divorced, the child has suffered abuse from a parent, the parent has passed away, the child does not have a relationship with the parent, or the child has been living with the grandparent for at least six months. Grandparents may not request visitation if someone other than the child’s step-parent has adopted the child.
