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Child Custody

Going to court for child custody can be a stressful event for a parent or guardian.  The judge’s decisions about child custody can have serious long-term impacts on a parent or guardian’s relationship with a child.  Therefore, this article will help you prepare for a custody hearing by informing you on what to expect if you go to court, how the court makes its decision, and what not to do while in a custody battle. In Texas, when a parent wants to establish custody the parent has the right to file a lawsuit called a Suit Affecting the Parent Child Relationship (also known as a SAPCR) or a Suit to Establish the Parent Child Relationship. The lawsuit will ask the court to decide issues of parentage, conservatorship, visitation and child support.

What can I expect from a SAPCR hearing?

At a SAPCR hearing, a judge will consider what custodial arrangement to order. In Texas we do not have custody but instead have conservatorships. Texas has two kinds of conservatorship: (1) sole managing conservatorship, and (2) joint managing conservatorship. The presumption is that joint managing conservatorship is in the best interest of the child. However, the court will consider many factors in deciding which type of conservatorship is appropriate. The “best interest of the child” is always the court’s primary concern. The court is not allowed to discriminate against a parent because of sex or marital status. Additionally, all factors surrounding the child’s life may be relevant to determine what is in the child’s best interest.

When a parent is appointed as a joint managing conservator (referred to as JMC), both parents will often share parental rights duties and powers. However, even in a JMC situation, the court may designate one parent who will be responsible for establishing the location of the child’s primary residence and designate the geographic location within which the child’s residence must be located. This parent is called the primary joint managing conservator, also referred to as the “custodial parent.” The other parent is called the “possessory conservator,” because that parent has the right to possession of the child at certain times, and is commonly referred to as the “non-custodial parent.” Aside from the decision regarding the location of the child’s primary residence, most other major parenting decisions are shared between the primary and possessory joint managing conservators. The presumption under the law is that joint managing conservatorship is in the best interest of the child.

The parent or guardian that receives the residence of the child will receive one additional superior right, which is the right to receive child support.  Therefore, the parent that does not have residence of the child will be required to pay child support.

How does the judge make his/her decision?

First and foremost, the presiding judge will make a decision on Joint Managing Conservators vs. Sole Managing Conservators and who will determine residence of the child based on the best interests of the child—rather than those of the parents. So what exactly does this mean? While most people are familiar with the phrase, “best interests of the child,” many are unsure what contributes to that decision therefore the following factors are what goes into the decision:

  • The parent who has been the primary caretaker of the child
  • Parents to provide for the child’s needs and development
  • Emotional health of the parents
  • Informal or formal child care agreements
  • Indications of alcohol or substance abuse
  • Instances or accusations of domestic violence
  • The child’s preferences (is not dispositive)
  • Financial stability of the parents
  • Stability of the parents’ home environments

While some of these elements will bear more weight than others in the eyes of the court, most rulings are based on a careful consideration of several different factors listed above.  With the more recent events weighing more heavily than those from long ago.

In most SAPCR cases, the Court will request a Social Study. The Social Study is a court ordered investigation of the circumstances and home life of the parents and the child. It is usually conducted by a social worker, who will visit the home of each parent and interview the child, the parents, and other persons involved in the child’s life. When the investigation is finished, the social worker will write a recommendation to the court as to what would be in the best interest of the child, including where the child should primarily live and/or what type of visitation schedule would be best. Normally the parties are ordered to each pay for half the cost of the social study.

If the child custody hearing is being held in order to modify a prior SAPCR, then the person seeking the modification must show that circumstances have significantly changed since the original SAPCR. For example, a non-custodial parent might request a modification because a custodial parent plans to move away.

What NOT To Do During SAPCR!

As you can tell from the list of factors above the court predominantly considers the actions of the parents in making its determination.  With the most recent events weighing more than those from long ago. Therefore, the actions that parents take during litigation will have the most bearing on the Judge’s decision.  With that in mind the following is a list of what NOT to do during litigation:

  • Alienate the kids
  • Talk to the kids about the litigation
  • Physical harm or confront the opposing party(s) or child
  • Move in with your boyfriend or girlfriend
  • Criticize the other parent
  • Stop paying child support – even if there is no order obligating you to pay
  • Take the kid out of school or daycare without approval from the other party
  • Go on an unexpected vacation

During litigation your movements and actions will be viewed under a microscope.  Therefore, be cautious about what you do. Especially in today’s society that allows your ex to view everything you do on Facebook, Twitter, and cell phones.