Child Custody


When a relationship ends, generally through divorce or separation, many issues must be resolved, including custody of the child or children of the couple. Often the parents of the child/children create a mutually agreed-upon custody settlement. However, some couples are not able to reach agreement and custody must be decided by the court. Contested custody disputes between parents can be complex and often time consuming. Some issues faced by the court may include parenting time, relocation, custody of multiple children, child support issues, and parents living in different states or countries. Since contested child custody disputes can be difficult and complicated, it is important to speak to a family law attorney knowledgeable in child custody issues to answer any questions you may have and learn about your legal options.

Best Interests Test

The court considers the “best interests of the child” when determining child custody. In the past, courts used the “tender years doctrine” presumed granting the mother custody to be in the child’s best interests; however, this is no longer a legal standard used by the courts today the standard is the best interest of the child. Instead, when determining the best interests of the child, there are many factors the court will take into account, including which parent has been the primary caregiver, the physical and mental health of each parent, the parents financial circumstances, the child’s wishes, the parents’ wishes, the relationship between the parents and child (or children), the relationship between any siblings or other immediate family members, and the location of each parent (where the parent resides).

Types of Custody/Conservatorship

In Texas, the term “custody” has been replaced with the term “conservatorship”. Courts used to award custody/conservatorship to the mother, simply because the mother was considered the natural caregiver. With the best-interests-of-the-child standard, primary conservatorship by either parent may be deemed to be in the child’s best interests. When the court determines the conservator who has the right to determine the child’s primary residence under the “tender years doctrine”, this does not always mean sole custody/conservatorship over the child. The Court still has to decide when each parent has possession, what rights each parent has as to decisions for the child. Conservatorship may be joint or shared between the parents, as well, which is the presumptive arrangement in Texas absent the advent of circumstances, which would deny the presumption. Joint conservatorship may be shared physical possession of the child or provide for a legislated standard possession order. This may mean time is spent equally with each parent or less with one parent than the other. For example, a child may spend most of the time with one parent and see the other parent on holidays and specified weekends.

Most commonly; in joint conservatorship or custody situations, parents share the role of joint conservatorship, and one parent has primary physical possession of the child, while the other parent has specified possession (visitation) time. Rights and duties may be shared, independent or given to joint conservators. The court may find this type of arrangement particularly beneficial when one parent lives in a foreign country or at a distance that makes regular possession difficult. Specific possession (time, days, amount) may be specified in the custody agreement between the parties or may be granted by the court based on the facts of the case.   Even if one parent is granted primary possession of the child, the other parent will normally have specified possession time. The exception would be in instances of abuse or family violence, if there is evidence of child abuse, possession times may be conducted in the presence of a court-appointed neutral third party or may be denied.

It is important to note that in joint conservatorship arrangements, the parents must be able to cooperate with each other and make decisions together for their child’s future. Parents will have to prove to the court that they will be able to work together to raise their child. Contested custody cases can become heated and bitter disputes. For this reason, the court is hesitant to award joint conservatorship to parents unless they can show the court they will be able to work together and if not, then the Court will often favor the parent who has shown a better ability to cooperate and put the child’s needs above their own.  If you are going though a custody dispute, it is important to speak to an attorney. Contested conservatorship cases may be complex and time consuming, and a family law attorney will be able to explain your legal options, answer any questions you may have and assist you during this difficult time.

Article provided by Hammerle & Finley Law Firm.