LAW OFFICE OF S.M. BUSH 832.237.3600 "PROVIDING EQUAL ACCESS TO LEGAL SERVICES" |
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.”
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.
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.”
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.
| OFFICE INFO: 832. 237.3600 (PHONE) 832.237.3619 (FAX) 9:30 - 4:30 P.M., M-T 9:00-1:00 Friday WEEKEND & AFTER HOURS APPOINTMENTS ARE AVAILABLE (OFFICE HOURS) 9601 JONES ROAD, SUITE 222 HOUSTON, TEXAS 77065 (MAIN OFFICE) |
Neither by accessing this site or by
reviewing its contents has an attorney
client relationship been formed or
established, and nothing contained in
this site shall constitute the giving or
rendering of legal advice or be
construed as a legal opinion, or
guarantee of a particular resolution of a
legal problem. Information is provided
as a public service, and is not intended
to be a substitute for legal counsel.
The information provided is general in
nature and may not apply to you or
your circumstances, particularly if you
do not live in Texas. You should not
decide to take any action or refrain
from action based upon this information
only.
Under no circumstances should you
make legal decisions based upon the
information provided on this web site.
You should consult an attorney in
person before making any important
decision involving a legal matter.
reviewing its contents has an attorney
client relationship been formed or
established, and nothing contained in
this site shall constitute the giving or
rendering of legal advice or be
construed as a legal opinion, or
guarantee of a particular resolution of a
legal problem. Information is provided
as a public service, and is not intended
to be a substitute for legal counsel.
The information provided is general in
nature and may not apply to you or
your circumstances, particularly if you
do not live in Texas. You should not
decide to take any action or refrain
from action based upon this information
only.
Under no circumstances should you
make legal decisions based upon the
information provided on this web site.
You should consult an attorney in
person before making any important
decision involving a legal matter.
| 9601 JONES ROAD, SUITE 222, HOUSTON, TEXAS 77065 (PRINCIPAL OFFICE) 723 MAIN STREET, SUITE 423, HOUSTON, TEXAS 77002 (DOWNTOWN OFFICE) 832.237.3600 (PHONE) • 832.237.3619 (FAX) • INFO@LAWOFFICEOFSMBUSH.COM (EMAIL) |
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| CUSTODY |