Child Custody

The decision of whether to fight for custody should be based on what would be in the child’s best interests.  A parent’s selfish needs or desires to hurt the other spouse should not be a factor, nor should a parent’s desires to collect child support.  Keep in mind that fighting for custody can often be expensive and may even be harmful to the child emotionally.   

A child who is 12 years or older can execute an affidavit stating who he or she wants to be his or her managing conservator. The purpose of this affidavit is to inform the judge of the child’s election and is not binding on the judge.

How do I decide whether to seek sole custody or joint custody?

Texas law presumes that all parents will be granted the title of joint managing conservators.  The presumption may not apply when issues such as drug abuse, alcohol abuse, or domestic violence affect the children.  In those instances, one parent may be named the sole managing conservator and the other parent will be named the possessory conservator. 

The title given does not necessarily affect the other issues pertaining to the children.  Regardless of the title, both parents will be awarded certain rights and duties to the children, and both parents will be awarded periods of possession with the children.  Typically, with children over three years of age, the Courts will impose the Standard Possession Order under Texas law.  One parent will also be ordered to pay child support in most situations.

How can I get legal custody if my child is living with me but the other parent has court-ordered custody?

What sort of visitation is usually awarded?

Texas law presumes that a standard visitation schedule will be followed in most cases for children age 3 and over. A judge can deviate from the standard schedule with good cause, and special allowances can be made for religious holidays.

Of course, parents can agree on custody arrangements that differ from the standard visitation schedule, and judges will almost always go along with their agreement.

Regardless of the visitation schedule written into the divorce decree, divorced parents can always agree to follow any workable schedule of visitation they feel is best for their child. Possession orders are made by judges to provide a definite visitation schedule in case parents cannot agree.

What is the standard possession order?

The Texas Family Code provides a standard possession order for parents who live within 100 or over 100 miles of each other. For parents residing within 100 miles of each other, the standard possession basically divides holidays evenly between both parents and gives the parent with visitation at least two weekends a month, two hours on Thursdays during weeks not in possession, and 30 days during the summer.

School holidays can extend a parent’s visitation. Under the standard possession order, if a parent has visitation on a weekend and the following Monday is a school holiday, then the period of visitation ends at 6:00 p.m. on Monday instead of Sunday. Likewise, if school is out on Friday, the weekend visitation starts at 6:00 p.m. Thursday instead of Friday.

Differences for over 100 miles:

Here are the differences for parents residing over 100 miles of each other:

• Holidays are still the same, except spring break which is given to the possessory parent every year.
• Parent with visitation is given 42 days in the summer instead of the standard 30 days.
• Elections to visit once a month instead of 1st, 3rd and 5th weekend.

What does the Standard Possession Order include?

The standard child custody order for parents who live less than 100 miles apart presumes that a child age 3 or older will live most of the time with one parent and that the other parent will have visitation on the following schedule:

• Weekends starting at 6:00 p.m. on the first, third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday (an option is to start when school is dismissed on Fridays and return Monday to school).

• Thursdays during the school year starting at 6:00 p.m. and ending at 8:00 p.m. (option: beginning when school ends and/or ending when school resumes the following Friday morning).

• From 6:00 p.m. to 8:00 p.m. on the child’s birthday.Fathers have possession for Father’s Day from 6:00 p.m. on the Friday before Father’s Day until 6:00 p.m. on Father’s Day.Mothers have the same period for Mother’s Day.

• In even-numbered years:Dad has the child during Spring Break, Mom has the child for Thanksgiving, Dad has the child for Christmas from the time school lets out until noon on December 26, and Mom has possession from December 26 until 6 p.m. on the day before school resumes. The use of “Mom” and “Dad” is for an example only—it could be reversed depending on who has primary custody. In odd-numbered years, the holiday schedule is reversed.

• The parent with visitation has the child for 30 days during the summer. If that parent gives notice before May 1, he/she can designate the 30 days during the summer when he/she has possession in up to two separate periods of at least seven days. If no notice is given, he/she has possession from July 1 until July 31.