One of the most heated debates in Family law is who gets to keep the child(ren). There are numerous considerations and factors outlined under Texas law for attorneys and judges to consider, however, the prevailing factor is what is in “the best interest of the child.” This determining factor requires a look at the child’s entire environment which includes each parent’s situation, living arrangements, neighborhood, proximity to loved ones and other important factors to help contribute to the child’s health, welfare, physical safety, and emotional wellbeing.
Other factors include, which parent is able to prioritize the child more than the other, how much each parent has contributed to the child’s care including helping the child with school, extra-curricular activities, physical and emotional development.
Usually, each parent’s attorney work together to devise a “parenting plan” that best satisfies each side’s wishes. If a child is 12 years or older, the child’s preference will also be taken into consideration. If both sides are not able to reach an agreement, a Court will make the decision and must follow the “best interest” standard. However, usually, the Court’s decision may not be what each parent desires.
Under Texas Law, child custody or “conservatorship” must be determined when children are involved in a separation to determine who gets to make decisions regarding the child’s healthcare, education, extra-curricular activities, and more. Texas presumes both parents are fit to be named “joint managing conservators” each with rights to make decisions regarding the child’s education, health, and welfare instead of a “possessory conservator” who has limited access and rights to the child. Joint managing conservatorship also means no parent may make major decisions without the other’s consent, such as going forward with a medical procedure.
Additionally, one parent is given primary physical custody to determine where the child lives during the week vs. weekend. However, Texas courts do not instantly grant joint conservatorship and are given considerable discretion in determining what is in the best interest of the child.
External factors or special needs of the child create exceptional circumstances to deviate from the general standard possession order, which outlines the general division of not only child custody, but also child support, property, debts, and even who gets the dog if needed. Thus, joint managing conservatorship most likely will not be granted if, for example, one parent has a history of abuse, other violence, or egregiously hiding assets from the other parent. A Court may also deny joint managing conservatorship if such extenuating circumstances of one parent would affect the child’s physical and emotional welfare.
Child custody battles are very contentious and difficult on everyone involved. It is highly recommended to get a qualified attorney to navigate and promote a well thought out parenting plan regarding conservatorship and more. In this way, a Court does not need to step in and order what neither parent most likely may not prefer. It is imperative to talk to your attorney and discuss all facts of your case to help you in the best manner possible. In this way, you are able to control the outcome of your case so that you are satisfied and the best interest of your child(ren) are also satisfied. This fosters a great path for the entire family to easily move forward, reduces stress levels, and helps your ability to make future holiday family plans.
About the Author: Mala Sharma has been practicing family law and personal injury with her family at the Law Offices of Sharma & Associates, founded in 1997 with over 42 years of combined experience. Mala is a Board of Advocates for the Houston Trial Lawyers Association, Vice-Chair of the American Bar Association GP Solo YLD, member of the Houston Bar Association, President Emeritus of the Houston Northwest Bar Association, and prior board member of the South Asian Bar Association.
This material is available for informational purposes only and not for the purpose of providing legal advice. If you require advice on any particular legal question, you may contact Sharma & Associates at 281-893-8644 or by email at firstname.lastname@example.org to schedule a free consultation to discuss your case.