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Child custody can often be highly contentious for parents involved in a divorce or for parents who never married. Every parent wants to do right by their child. But this may lead to disagreements with the other parent over who can provide the best home and guidance for the child.

Under Texas law, a court must ultimately consider what will be in the child’s best interest rather than either of the parents. But as the parent, you have every right to make your case. A qualified San Antonio custody attorney can assist you in this process. Attorney David J. Rodriguez has 30 years of experience working with mothers and fathers. He can advise you on seeking fair access and custody of your child while ensuring their welfare.

Understanding Texas Public Policy for Custody Disputes

The Texas Family Code defines the state’s basic public policy regarding child custody disputes. These policies include the following:

  • A child should have frequent and continuing contact with parents who have shown the ability to act in the child’s best interest;
  • A child has the right to a safe, stable, and non-violent living environment;
  • Both parents should be encouraged to share in the rights and responsibilities of raising their common children following a separation or divorce.

Ultimately, the child’s best interest is always a judge’s primary consideration when resolving a custody dispute. That said, the court cannot presume that either parent is more or less fit to raise their child based on sex or marital status. In other words, courts should not automatically favor mothers over fathers or a married parent over an unmarried parent.

Another thing to keep in mind is that while we often use the term “custody” to describe these kinds of legal decisions, the Family Code uses the term “conservatorship.” Two types of conservatorship/custody must be resolved when the parents separate and live apart.

The first is a managing conservatorship. This is what you typically think of as “legal custody,” it refers to which parent is responsible for making key decisions about a child’s life, such as where the child will live, attend school, and receive medical care. Texas law presumes that both parents should be named as joint managing conservators. Again, this is separate from the issue of which parent the child mostly lives with. A joint managing conservatorship means that both parents have an equal say when making major decisions regarding the child’s well-being.

However, the presumption of a joint managing conservatorship can be rebutted, and there are situations where one parent may seek to be named as the sole managing conservator. Some common reasons for taking this step include:

  • A parent has committed family violence against the child or the other parent.
  • A parent has an untreated drug or alcohol abuse problem.
  • A parent has largely been absent from the child’s life.

If one parent is named sole managing conservator, the other parent is often called a possessory conservator. This is the legal term describing a parent with visitation rights. A possessory conservator will not have the final say on major decisions involving the child.

Ideally, the parents can agree on a visitation schedule that works for everyone. But in the absence of such an agreement, Texas courts will follow guidelines known as the “standard possession order” in determining how much time a child will spend in the care of each parent. The basic policy is that the non-custodial parent should possess any child over three years of age for a few hours every Thursday night, every other weekend, alternating holidays, and at least one month in the summer. But these are simply guidelines, and a court is allowed to deviate from them if it finds doing so would be in the best interests of a specific child.

Additionally, in cases where the court has concerns about a child’s safety or well-being in the possession of a non-custodial parent, the judge can impose certain restrictions. For example, the court may require the parent’s time to be supervised by another person. The judge can even order a parent to abstain from the use of alcohol or a controlled substance during their time with their child and for the 12 hours preceding their visit.

Defining the “Best Interest of the Child”

While every parent feels they have their child’s best interests at heart, the legal definition of the “best interest of the child” is not simple. A judge must consider various factors under Texas law. There is no one-size-fits-all test for making a best-interest determination.

  • The child’s wishes, if they are old enough to express them;
  • The child’s current and future physical and emotional needs;
  • Anything that poses a current or future danger to the child’s physical or emotional well-being;
  • Each parent’s relative parenting abilities;
  • Each parent’s proposed plan for the child’s care and upbringing;
  • The stability of each parent’s home;
  • Any actions or failures to act by the parent that suggest they do not have a proper relationship with the child;
  • The parent’s reasons for any such actions or failures to act.

It is critical to emphasize that no single is necessarily dispositive. For instance, a judge is not required to simply follow a child’s wishes regarding which parent they wish to live with. And the judge must always strive to ensure both parents have access to the child unless the circumstances and evidence show a parent is unfit.

Can Child Custody Orders Be Modified in Texas?

As with determining custody in the first place, a Texas court will only approve a modification in a managing or possessory conservatorship if it is in the child’s best interests. Typically, this means showing that there has been a material and substantial change in circumstances since the court entered the original custody order. And, of course, a court is more likely to approve a modification jointly requested by both parents as part of an agreement.

Agreed Parenting Plans

Indeed, many custody cases in Texas are resolved by agreement between the parents instead of a contested proceeding before a judge. Texas law promotes such “agreed parenting plans.” Such contracts must be in writing and signed by both parents.

An agreed parenting plan can establish whether the parents will act as joint managing conservators or if one parent will serve as sole managing conservator. The parenting plan can also set a visitation schedule that deviates from the standard possession order. However, the court must still approve any parenting plan, applying the same “best interest of the child” standard as in a contested custody proceeding.

Speak with a San Antonio Custody Attorney Today

Even in cases where parents are in broad agreement over how to raise their children during a separation or divorce, several details often need to be ironed out before a final deal is ready. Working with an experienced San Antonio custody lawyer can benefit you and your children immensely. And in cases where an agreement proves impossible, a lawyer can represent you in making your case to a judge.

So if you need to speak with a lawyer as soon as possible, contact the Law Office of David J. Rodriguez, PLLC, today at (210) 716-0726 to schedule an initial consultation.

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David took care of will for husband and I. Great experience. He is knowledgeable and efficient. We needed that after perusing forms online. Although reasonably intelligent we decided we definitely needed professional help. So glad we used David.
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