One of the most challenging and emotionally draining aspects of a divorce can involve child custody negotiations. You should contact Smith Family Law‘s child custody lawyers in Austin immediately if you have kids and want to file for divorce or have already initiated legal proceedings.
Deciding who your child should live with, how much time the other parent should spend with them, and other issues related to custody can be stressful. You want to meet your child’s needs regardless of your feelings about your ex. Even if you don’t get along, you know your child should continue a relationship with them.
Smith Family Law can help you put your feelings aside to arrange a custody agreement that meets your interests and ensures your child’s well-being. To learn more about your legal options, call us at (512) 277-3166 for a free consultation with a skilled family law attorney in Austin today.
Types of Child Custody in Texas
Conservatorship is the legal term for custody in Texas. The two primary types of conservatorship are:
- Managing conservatorship – Managing conservatorship gives a parent the right to make essential decisions about their child’s life, including their religious upbringing, healthcare needs, and education.
- Possessory conservatorship – Possessory conservatorship is about where the child will live at any given time and when each parent has time with the child.
Texas Family Code 153.131 requires the court to appoint one or both parents as joint managing conservators unless it would not be in the child’s best interest because the decision would significantly impair the child’s emotional development or physical health. That means critical decisions about the child’s life should involve both parents.
The law allows flexibility in custody negotiations so that both parents can decide on the terms. However, a judge can intervene and use a standard possession order if the parties can’t agree on a conservatorship arrangement.
A standard possession order is a detailed arrangement of specific times the child will spend with each parent. The custody and visitation schedule will take into account the distance between the parent’s homes.
Sometimes, the court will appoint one parent as the sole managing conservator if joint managing conservatorship isn’t in the child’s best interest. However, that is only under extreme circumstances, such as where child abuse, domestic violence, or untreated drug or alcohol abuse exists.
Rights of a Sole Managing Conservator of a Child
A sole managing conservator has specific rights under state law, including to:
- Give and receive a receipt for periodic child support payments and disburse or hold funds to benefit the child
- Designate the child’s primary residence
- Consent to enlistment in the United States armed forces and marriage
- The child’s services and earnings
- Consent to psychological and psychiatric treatment
- Make decisions about the child’s education
- Consent to dental, surgical, and medical treatment involving invasive procedures
- Represent the child in legal action and decide on other legally significant matters related to the child
- Act as the child’s agent regarding their estate unless the court appoints a guardian or attorney ad litem for the child or guardian of the estate if the state, foreign government, or the United States requires the child’s action
How the Court Decides on Child Custody in Texas
Texas Family Code 153.001 establishes the public policy of the state, the purpose of which is to ensure that:
- A child has frequent and continuing contact with parents showing an ability to act in their child’s best interest
- The parents are encouraged to share in the duties and rights of raising their child after separation or divorce
- The parents provide stable, nonviolent, and safe environments for the child
The courts use the child’s best interest as the primary factor in determining custody. Other factors they consider include:
- Any future and immediate physical and emotional danger to the child
- Actions or failures to act indicating a parent doesn’t have an acceptable parent-child relationship
- The parent’s excuse for their actions or failures to act
- The child’s immediate and future emotional and physical needs
- Available programs for assisting parents who want to promote their child’s best interests
- The child’s desires
- The home or proposed home’s stability
- Each parent’s plans for the child
- The parental abilities of each parent
Although the child can voice their preference for who they would rather live with, their wishes aren’t legally binding in court. That means the court will consider the child’s wishes but decide on custody according to the child’s best interests and other necessary factors. Typically, children don’t get the final say in which parent they primarily reside with and whether the other should have access to them until they turn 18.
Modifying a Child Custody Order
You can file a Petition to Modify the Parent-Child Relationship with the court to request changes to a conservatorship or possession order. However, the court will grant the child custody modification request only if the amendment is in the child’s best interest and at least one of these circumstances apply:
- The child is at least 12 and expresses to the court their preference for who they should live with
- The appointed conservator relinquishes primary possession and care of their child voluntarily to someone else for at least six months
- The conservator, child, or another person affected by the order experiences a substantial and material change in circumstances since the date of the current order or the date of the signed settlement agreement regarding the current order, whichever occurs sooner
Relinquishing primary care and possession of the child isn’t a circumstance justifying a modification if the reason was due to military service.
Speak to an Aggressive Child Custody Lawyer in Austin Today
When the stakes are high, you deserve representation from a skilled and resourceful Austin child custody lawyer from Smith Family Law. We will advise you of your rights and guide you through each step of the custody process. You can depend on our team to protect your interests and fight for the best possible outcome in your case.
If you face a child custody battle or want to modify an existing order, call Smith Family Law at (512) 277-3166 now for a free consultation. Let us take care of everything so you can focus on yourself and your child.