The Basics of Texas Custody Laws
In Texas, all parents are afforded the same general rights under the law, regardless of their marital status. One principle, however, is to be understood: in Texas, married parents are presumed to be the joint managing conservators of their children. In essence, this means that both parents are presumed to have nearly identical, equal rights and responsibilities with regard to their children, unless otherwise determined by the Court. For unmarried parents, however, the determination of custody and possession of a child and the child’s primary residence must be adjudicated by the Court in a suit affecting the parent-child relationship.
A suit affecting the parent-child relationship is simply a lawsuit involving the rights and duties of parents and children, a child’s welfare, or both. Regardless of who is bringing a suit affecting the parent-child relationship, the Court will first make a determination of whether the potential appointment of joint managing conservators is in the child’s best interest . In Suits Affecting the Parent-Child Relationship (SAPCR), "joint managing conservators" are two (2) individuals who, together, are determining the course of a child’s life: upbringing, education, health care, religious training, etc. If the Court finds that the appointment of joint managing conservators is in the child’s best interests, then the available rights and duties of the joint managing conservators are distributed between them. For example, the Texas Family Code grants the Court the right to appoint one parent as a "possessory conservator" and another parent as a "managing conservator" of a child. Possessory conservators are entitled to possession of the child during certain periods as described by the parties’ agreement or as found by the court, and managing conservators determine the educational and medical decisions for the child. These labels are not indicative of their actual custody of the child, which can be equal or unequal, meaning that either or both parents can have sole physical custody of the child.
The Importance of Paternity
In Texas, establishing paternity is an important step in the process of determining child custody and child support rights and responsibilities. Paternity refers to the legal recognition of a father-child relationship. For unmarried parents, proving paternity is necessary to establish legal ties between a father and his child or children.
If you were not married to your child’s other parent when the child was born, there are three different ways to establish paternity. First, you can sign an "Acknowledgment of Paternity." This document can be completed and signed at the hospital immediately after your baby is born. Second, if you did not sign the Acknowledgment of Paternity at the hospital, you may file a petition in court to establish paternity.
Lastly, if you were not married to the child’s mother at the time of birth, you are not listed on the birth certificate, and you were denied an opportunity to sign the Acknowledgment of Paternity at the hospital, you have one year from the date of your child’s birth to establish paternity. An Acknowledgment of Paternity that is signed at the hospital may not be revoked after 60 days from the date that the child was born.
Unfortunately, identifying the father of a child in cases where the parents were not married is sometimes difficult. In such cases, the Texas Office of the Attorney General may intervene to perform DNA testing to determine paternity, allowing you to establish paternity if you are the father. If the DNA testing results confirm you to be the father, you can seek a court order that designates you as the father.
Establishing paternity is not only important in determining who has the right to custody of a child after a divorce or separation, it is also necessary for determining child support obligations.
A paternity order that designates a father of a child also establishes the following:
Custody and child support may be modified in court if a parent can prove a significant change in circumstances that make a change in the existing order in the best interest of the child, so long as the modified order does not cause harm to the child.
Types of Custody
Types of Custody Available in Texas for Unmarried Parents
There are two primary types of custody arrangements in Texas: joint and sole. Joint managing conservatorship is by far the most common, with sole managing conservatorship being the rare exception. For most families, it is better for both parents to retain some level of access to their children and share legal responsibility for their upbringing. Physical custody refers to where a child lives. It’s important to note that just because a parent has physical custody does not mean that the child does not have a right to spend time with the other parent. Custody does not preclude a child from spending time with both parents; the terms of possession and access refer to the time spent with a single parent. Most commonly, one parent will have exclusive rights to determine the primary residence of a child. This means the child primarily lives with the parent who made the decision. In contrast, when the court orders that children alternate their domicile between parents or spend certain periods of time with one or both parents, the arrangement is referred to as joint managing conservatorship. Even in cases of sole managing conservatorship, access to the children is not guaranteed, but the parent with management can deny access to the other parent if he or she believes this is in the children’s best interests. For modest monthly fees, the court sometimes appoints a social worker, psychologist, psychiatrist or law enforcement to supervise access for the non-custodial parent. How does this apply to your situation? If you and the other parent were never married and there is no formal custody agreement, you are not guaranteed access. If you do not let the other parent see the children, you could be responsible for paying child support without having any input into their upbringing. Consider contacting an experienced Houston custody lawyer to talk about your case.
Factors for Determining Custody
The "best interest of the child" standard is the primary consideration in any child custody matter in Texas. This standard, which is not found in the Texas Family Code but has been established in decades of Texas case law, requires consideration of what arrangements are most beneficial for children of all ages. In addition to the general direction provided by the "best interest of the child" standard, Texas courts consider other factors when determining the custody of the children of unwed parents:
History of abuse or domestic violence. In making custody decisions, Texas courts will examine the history of abuse and domestic violence of the parents. A finding of abuse or domestic violence against a parent carries with it a presumption against that parent being given custody.
Potential for child abuse or domestic violence. If there is potential of child abuse or domestic violence of the children, courts will examine that when making custody decisions.
Home stability. The stability of the home of each parent is assessed to determine which home provides the most stability. Having been in one home for a longer period of time obviously contributes to the stability of the home.
Living arrangements. Where the child is living and who they live with are evaluated. Is the child living with only one parent? Are both parents in the home? Are grandparents in the home? Is the child living with babysitters or other caretakers?
Disruption of child’s social development. In assessing the effect on the child relating to the disruption of their social development, Courts will consider:
Parental rights. The rights of each parent are considered. Does one parent have a strong bonding with the child, while the other may not see them often?
Education. The educational level of the parents, including special abilities and academic skills.
Child-care proficiency. A parent’s parenting skills, knowledge of child development, and experience with children will be examined.
Evidence of substance abuse. Whether either parent exhibits poor impulse control as a result of substance abuse or has exhibited attitudes of self-indulgence, a commitment to unlawful behaviour, or poor judgment when dealing with other people are considered.
Filing a Claim for Custody
The procedure for filing for custody is generally the same procedure as filing for divorce. The party wishing to begin the process must file a petition in the county where they reside. In addition to completing the standard petitions, a Standard Possession Order will need to be attached which sets forth the possession and access plan for the child while the case is pending. Once the petition is filed, the other party will be served. If there are no temporary orders in place (i.e., possession, child support, exclusive use of the residence), the other party must be served with a notice of hearing for temporary orders and an order setting the hearing date must be signed by the court and processed by the clerk of courts. Both parties will be required to fill out Temporary Orders Financial Information sheets and financial information sheet with their attorneys present before the hearing. Temporary orders are usually set for a period of 30 to 90 days before the next hearing date.
If there are minor children involved in the case , the local child protection services or the Association of Counsel for Children may require that a home study be performed to determine what is in the children’s best interest. Often these studies are very biased against the party who does not have primary care of the child. In many cases the local court assigns "Centralized Family District Court Services (CFDS)" to prepare a home study which results in the preparation of a report to provide recommendations for the court. This report provides a valuable recommendation for the Judge but does not determine the amount of child support or other issues that may arise in the case.
At some point during the pendency of the case the Court will appoint an amicus attorney or an ad litem to represent the children. This attorney will meet with the children, interview the parents, interview the other people involved in the case and provide an objective recommendation to the court regarding the best interest of the child.
During the pendency of the case, discovery including depositions and records production are allowed. When temporary orders expire, the case is moved into the trial docket for trial or further temporary orders.
Rights of Unmarried Fathers
Fathers of children born illegitimately have no rights until a court adjudicates the paternity of the child. The most common reasons that fathers seek to be named the legal father are: to ensure that all their parental rights and obligations (including the right to seek a conservatorship order) and visitation schedules are spelled out by the court, and to terminate the obligation to pay child support (or the opportunity to receive child support). The process to determine paternity is simple, although not necessarily inexpensive. Unmarried fathers should file a paternity action at the same time as or prior to filing a custody suit to avoid delays. To establish paternity in Texas cases, the result that the court reaches is an Order of Parentage and it must be accompanied by a parentage determination.
Establishing paternity through genetic testing is typically a strong requirement of the court. Beginning on September 1, 2011, each person who consents to genetic testing must acknowledge paternity of the child by signing the Parentage Opportunity Notice.
When the court enters an order of parentage, it requires the defendant father to either accept parentage or deny parentage and request to submit an alternative genetic testing panel to the court.
Changing a Custody Order
Modifying custody orders in Texas generally requires filing a petition with the court with jurisdiction, typically the court you previously filed your suit affecting the parent child relationship. Every court does things differently, so check with your court for specific rules that may apply. We will walk you through the most common situation for unmarried parents.
If you see the need to change possession or access (visitation) or if you are changing primary conservatorship designations, you must also provide the Court the following mandatory documents with your petition:
Mandatory Texas Family Law Form For Preparing and Filing Possession Order, for use when parties desire a change in possession schedule.
Mandatory Texas Family Law Form For Preparing and Filing Conservatorship Order, for use when parties desire a change in primary conservatorship designation.
A significant change in circumstances is required before a modification of conservatorship is legally appropriate. A standard for determining the existence of such a change was set in the "case-in-chief" for the original suit. That standard includes such benchmarks as the child’s physical health, emotional development, and needs; the ability and willingness of the parent to give the child love and spiritual guidance; the acts and omissions of the parent which may indicate whether the parent would be an effective or ineffective parent; the programs available to assist the parent to promote the welfare of the child; and the parental abilities, character, and the nature of the parent-child relationship.
A new or modified plan for possession must comply with the Texas Family Code, all local rules, and all local customs of the courts. If there is a conflict among one or more of these sets of rules, the strictest of those rules or the one that requires the most work by the parties will govern. Generally speaking, a new standard possession order is preferable to only modifying the previous order.
Enforcement of Custody Orders
The enforcement of a custody order is not only the province of married parents. Unmarried parents might find themselves involved in modification/enforcement orders as well. Texas Family Code Section 157 governs contempt proceedings in Texas. Enforcement of a Texas Child Custody can involve an enforcement action because one parent is not living up to the terms of the custody order.
Enforcement actions in Texas Child Custody cases are used to force a parent to comply with the court’s orders. The remedy often available is "make up time" or "make up visitation" but it is not the only option. A parent could face a jail sentence or an attorney fee award against them. Alternatively, a parent might get their timeshare increased if they have been wrongfully denied access to their child. If there are repeated violations a family law judge might order a change of custody in a "revolving door" scenario . Perhaps the most common remedy is to order a make up period to the other parent.
Other remedies to ensure compliance range from monetary damages to attorney’s fees to contempt of court. Moreover, if a person has been found in contempt on two or more occasions for non-payment of child support in the past twelve months, a judge may also order the contempt being served in the Harris County Jail if the contempt is still not purged by paying current due. In addition, contempt can include ordering a parent to pay the other party’s attorney’s fees incurred in filing the motion for contempt as well as the attorney’s fees to have the contempt of court hearing.
Each custody matter is different and tuning a strategy to the specific facts and issues is critically important. Not all custody actions should be handled by the same techniques.