If you are headed for a divorce that involves minor children, you probably have several questions and concerns about how custody of your children will be handled in the divorce. Although every divorce is unique, Fort Worth custody lawyer Jon Boyd answers the top five Texas custody questions.
What types of custody are recognized in Texas? The term “custody” was once routinely used to describe which parent minor children lived with after a divorce. Most states no longer use that term. Texas, for example, refers to “conservatorship” of a minor child when referring to the rights and duties a parent has and “possession and access” when referring to the time a child spends with a parent. Conservatorship can be joint or sole. When the parents share the rights and duties regarding the minor child it is referred to as “joint managing conservatorship.” If one parent alone has those rights and duties the parent has “sole managing conservatorship.”
Is the mother more likely to get custody? Historically, there was a strong presumption in favor of a mother being granted “custody” of the minor children in a divorce. That presumption was based on the (mistaken) belief that only a mother could provide the care and nurturing a child needs, particularly during the child’s “tender” years. Both society and the law have come to realize that both mothers and fathers can make excellent caregivers. In Texas, that belief has been incorporated into the law by stating “The court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining:
which party to appoint as sole managing conservator
whether to appoint a party as joint managing conservator
the terms and conditions of conservatorship and possession of and access to the child.”
Can custody be changed? Although the terms of the Parenting Plan approved by the court become part of the final decree of divorce, it is possible (even common) to try and modify those terms at a later date. You may petition to modify the original order at any time; however, if you wish to change the conservatorship of a minor child, you must show:
The child is 12 years old and wishes to change the primary caregiver; OR
There has been a change in circumstances that is material and substantial; AND
The proposed changes to the order would serve the child’s best interests
Do my child’s wishes matter when it comes to custody? A child’s wishes will never be the sole factor in determining where a child lives or who has managing conservatorship over the child. All decisions affecting a minor child must be made using the “best interest of the child” standard. Texas does, however, allow a child who is 12 years of age or older to express his/her wishes regarding where the child lives and those wishes will be taken into consideration along with other relevant factors.
Can I get custody of my child if I was never married to the mother? It is possible to petition for sole or joint conservatorship of a child born out of wedlock; however, you must first establish legal paternity of the child. Legal paternity is what established both your legal obligations and rights regarding the child. In Texas, if both parents agree who the child’s father is, paternity can be established by signing an Acknowledgement of Paternity form. In most cases, the form is offered to the parents at the hospital. If paternity is disputed, a Petition to Adjudicate Paternity must be filed by the mother, the putative father, the child, or by the State of Texas is the child is receiving benefits from the State, such as Medicaid or SNAP. The court will set the matter for a hearing. If both the mother and father agree to parentage at the hearing, the court can enter an order to that effect. If, however, either the mother or the putative father denies paternity, the court will order a DNA test and enter an order establishing paternity if the test proves that the putative father is the biological father.
If have additional questions or concerns about custody in Texas, contact an experienced Fort Worth custody lawyer at Boyd Family Law to schedule your appointment today.