Family Law Attorneys

What is “custody”?
The legal term "custody" refers to the parent (or person) who will have the exclusive right to determine the primary residence of the child(ren) or with whom the children will live.  The other parent will have visitation rights. The person with the custody right is called the “custodial parent” and the parent who has visitation is called the “non-custodial parent.” Law office of S.M. Bush family law, family law attorneys

Under Texas law there is no presumption that a woman or a man, based on gender alone, is either more or less fit to be a custodial parent. By law, gender can not be used when making a custody determination.

Determining Who Gets Custody of the Child/Children under Texas Law

A custody proceeding is a lawsuit.  It is started by the filing of either a Divorce Petition (if the parties are married) or a Suit Affecting Parent-Child Relationship, also known as a “SAPCR.” The filing of either of these lawsuits is very similar to filing a lawsuit in civil court, with the exception you are suing to be designated the custodial parent of a child. It’s very important to consult with a lawyer if you are faced or will face a child custody proceeding before taking any action.

Child Custody and the Marital Residence – the Kids and the Family Home

 If you are married and still living with your spouse (even if you are sleeping in separate bedrooms) it’s very important to not leave the marital residence without your child/children. (If you are in a physically abusive relationship then different rules apply and you should call the police and let them help you remove your spouse from the residence.)
Domestic violence aside, if you voluntarily leave the residence and your spouse files for divorce it is very difficult, if not impossible to get back into the house while the divorce is pending. This puts you at a Disadvantage. The best course of action is to let a Court decide who should be the custodial parent while you wait for your divorce.

The Best Interests of the Child
The Courts’ guiding legal principle in deciding who should be the custodial parent is the child’s “best interests.” What exactly is in the child’s best interest is not particularly well defined, but Texas Courts have provided guidance.

What the Court Considers in Deciding Child Custody:  The “Holley Factors”
In one Texas divorce case, the court came up with a non-exclusive list of factors to look at in determining the best interests of the child. The Court found some pertinent factors in deciding what is in the best interests of children when parents are divorcing include:

• the desires of the child;
  
• the emotional and physical needs of the child now and in the future;
  
• the emotional and physical danger (of one parent) to the child now and in the future;
  
• the parental abilities of the individuals seeking custody;
  
• the programs available to assist these individuals to promote the best interest of the child;
  
• the plans for the child by these individuals;
  
• the stability of both parties homes;
  
• the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
  
• any excuse for the acts or omissions of the parent.
  

What the Court Considers in Deciding Child Custody:  Additional Factors
Sometimes these factors are referred to “Holley” factors. Other factors which a Court will consider include:

• which parent enables and promotes a friendly parenting environment for the other parent,
• who has been making the educational decisions of the children,
  
• who has been making any medical related decisions,
  
• who generally prepares for and feeds the children,
  
• which parent regularly meets with the teachers if the child is school age,
  
• has one parent been alienating the child from the other parent,
  
• who gets the child up in the morning and puts him/her to bed at night, and
  
• who participated in extracurricular activities,
  
• court appointed (or retained) child custody experts recommendations.
  

Again this list is not exhaustive, but it does provide guidance.  Also, the judge will always 

consider if either parent has or is using drugs or has either parent been involved in any criminal 

activity. Either of these will almost always result in an adverse ruling and sometimes a 

restriction in the amount of visitation the non-custodial parent has.

VISITATION –The Tie that Binds and The Right to Spend Time with Your Child
What are the rights of the non-custodial parent to visit their children when there’s a divorce?
Texas has a set schedule set by law for the non-custodial parent’s periods of possession which the Court will presume to be in the best interests of the child. Of course this can be changed,and frequently is, if evidence is provided to show that a parent cannot act in the children’s best interest.

The Standard Visitation Schedule under Texas Law
The non-custodial parents possession schedule is often call “Standard Visitation.” Standard visitation applies to children over three years of age.

The schedule when parents resides within 100 miles of each other is generally:
the 1st, 3rd, and 5th weekends of each month beginning at 6 p.m. Friday and ending 6 p.m. Sunday;
Friday determines which weekend is the 1st, 3rd, or 5th (not Saturday!);
Every Thursday night from 6 p.m. until 8 p.m.;
There is also time for summer and holiday provisions that supersede the above described 
possession periods;
Summer is 30 days in the summer;
Thanksgiving and Christmas are generally alternated every year;
The mother always gets the full weekend that Mother’s day falls on;
The father always gets the full weekend that Father’s day falls on regardless whether it’s his/her 
weekend.
The one week spring vacation is alternated between the parties yearly.
Of course there are many nuances to the visitation periods but this gives the general idea. One 
of the most important features of Texas Standard visitation is if the parents can agree on a 
different possession schedule, then the parents are always free to change it. The Courts 
encourage this!

Children Under 3 Years Old and Over 18 Years Old
Once a child is over the age of 18 and is no longer enrolled in school, then that child is no 
longer considered a minor for custody purposes and the possession schedule doesn’t apply.  
They are legally an adult under Texas law.

For children under 3 years of age there isn’t a set schedule in the Texas Family Code.  Each 
judge has broad authority to determine a schedule that fits the needs of the parents and is in
the child’s best interests