“Child Custody” is a general term often used to refer to the legal process that determines who will have the exclusive right to make the major decisions in a child’s life, where they live, what school they go to, which doctor they will see, and where and when they go on vacation. The correct legal term is “conservatorship.” The person who has the right to make the major decisions is often referred to as the custodial parent, and the parent with visitation as the non-custodial parent. For simplicity, this article will refer to conservatorship as “custody”, since that’s the most commonly understood term.
Let’s look at how the process begins. Custody questions generally arise from a divorce (we’ll look later at custody modifications, which is where a custody order is in place but where a petitioner asks for a modification). The custody question is resolved during the divorce process, by a document called “Petition for Divorce.” If it is not a divorce process, but just a custody process, then the document is called a “Petition in Suit Affecting the Parent-Child Relationship” (aka a ‘Conservatorship Document’).
In terms of custody, Texas Courts will determine custody based upon the best interests of the child. They will begin with the presumption that the best interests of the child will be served by joint managing conservatorship, where both parents would be involved in the decision process. There is often a misconception that courts prefer to give custody to the mother, but in fact the law prohibits gender being a consideration. The courts are simply looking to ensure that those who are given custody are fit to be the child’s custodian, that they can provide a stable home, an education, and an environment that fosters healthy emotional and psychological development of the child, and that they will not endanger the child by act or omission. This is the simple starting point for the custody process. From there it can get complicated.
This process often becomes contentious for at least two reasons: extenuating circumstances, such as one or both parents being abusive or having an alcohol/drug problem, or due to the emotions that inevitably arise during a divorce or custody battle.
If the problem in the custody has to do with emotions of the parties, and the parents cannot agree on custody, the court may order a social study or mediation. The court would then use the outcome of these processes to determine custody.
A child can also have input to the process. The Court may interview a child 12 years or older to understand the child's wishes or the child could put in writing the child’s preference. However, the court will follow the "best interest of the child" standard to make its decision, and not necessarily the wishes of the child.
For extenuating circumstances, it’s very important that you have your case properly presented to the court. The Judge will have to decide if an issue truly exists, and if it affects the ability of the parent to have the child entirely in their charge for any given amount of time. It may be appropriate at this time to ask for a social study, or a psychological evaluation.
The possible outcomes from the custody process are;
Joint Managing Conservators: both parents have rights, but they wouldn't necessarily be equal; one may have more time and/or rights than the other. In Texas, the courts generally order both parents as joint managing conservators because that would be in the best interests of the child. It will then take into account the specifics of the case to see if that presumption is valid for that specific case.
Sole Managing Conservator: only one parent has custody and decision making rights for the child, although in some situations, the possessory conservator does get some decision-making rights
Possessory Conservator: the parent who does not have possession of the child, but has visitation rights (also known as “Access to the Child”). This parent may not take control or possession of the child from the managing conservator and generally will be granted “Standard Visitation”, or some variant thereof.
The orders established by the court end when the child turns eighteen, or graduates from high school, whichever is later, or when a another order (modification) is entered by the court, or upon the remarriage of the parents.
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