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How is Child Custody Decided in Texas?

Divorce is an unquestionably complicated process and these issues become magnified if a divorcing couple has children. In addition to dividing property, assets, and calculating potential spousal support, the best interest of the children must be decided.

It is presumed in Texas that parents should be awarded joint custody, otherwise known as Joint Managing Conservators. But there is often quite a bit of confusion as to what parents perceive custody to mean and how Texas family courts define joint custody.

Parents often assume joint custody means equal time with the children, but the courts define custody as having the legal right to make decisions regarding the children's wellbeing. Parent often confuse full custody with what the courts define as having the right to designate the child's primary residence. In most situations, the courts will award the parents "joint custody" but name one parent as the parent with the right to designate the primary residence of the child, which often then means the other parent is ordered to pay child support and will have visitation of the child on the first third and fifth weekend.

Sometimes parents who try to resolve their divorce amicably attempt to pursue a truly equal division of time with the children with alternating equal periods of time, such as a "one week on, one week off" schedule. Texas Family Courts will almost never make such an order unless both parents agree to it. Even if both parents do agree to an equal division of possession and access to the children, Family Court Judges may still not agree to such an order unless they can be convinced that such a plan would be in the child's best interest. Judges have wide discretion in determining what is in the child's best interest, some of the most common factors are discussed below.

Are Both Parents Fit to Raise Children?

There are many different reasons that a couple might get divorced and these reasons can have an impact on deciding where the children will live. For example, some couples get divorced because one spouse committed domestic violence. Some divorces occur because one spouse suffers from drug or alcohol addiction or may have neurological or psychiatric issues that need to be addressed before regular possession and access would be in the child's best interest. In these situations, there are social circumstances that render one of the parents unfit to raise children. Parents whose spouse has serious issues that jeopardize the child's wellbeing must be very careful about allowing their spouse unsupervised access to the child without court approval, allowing such visitation could result in the court notifying child protective services.

Where Do the Parents Live?

After a divorce most parents will still remain living in the same general area, Judges in Harris County, typically limit parents live by restricting it to Harris and surrounding counties. However Harris County itself is a very large place, depending on the time of day it could take a parent two hours to drive from Baytown to Katy. Courts will be very loathe to approve a custody plan that would require the child's school commute to be two hours every morning. Courts will normally want to see parents live not more than 10 to 15 miles from each other. However it will not be enough for the parties to currently live close to each other, courts are often not just looking for what is in the child's best interest right now, but also what will be in the best interest for the child until the time the child becomes an adult. As such the courts will often require that the parents are not allowed to move outside of a small geographical area, there is no defined rule as to what the courts will require here, but the area will need to be significantly smaller than just restricting the parties to living within Harris County...

How Old are the Children?

Some parents may get divorced later in life. If the children are older, such as during their high school years, the court may decide that the children are old enough to decide which parent they would like to live with. While the kids will not have total say, the judge will take the opinion of the children into account. Generally the court will consider a child's preference one a child reaches the age of 12, but the Judge can consider a younger child's wishes if the Judge so wishes. If the judge decides the children are mentally able to process the importance of this decision, the opinion of the children could tip the decision one way or the other.

In the end, the court will always try to place the children in what it believes is the best situation under the circumstances and there are many different factors the court will consider. This is why it is important for any parents going through a divorce to consider reaching out to an experienced family law attorney for assistance navigating these legal challenges.

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