Protecting Your Child and Protecting Yourself in Custody and Visitation
When you’re facing divorce in Texas and there are minor children still living in the marital home, finding a workable solution for custody and visitation can be difficult. Under the law in Texas, a custody determination must be in the best interests of the child. As a parent, that’s what you want, too. But you also want to play a meaningful role in your child’s growth and development. You want meaningful time with them, so that you can fully express your love and guide them in the right direction. It’s a delicate balance.
How Do the Courts Typically Define “the Best Interests of the Child”?
According to the Texas Family Code, §153.002, the best interest of the child must be the primary consideration in the determination of custody and visitation. The Texas Supreme Court has clarified what this includes, providing a list of factors the court may consider:
- The physical and emotional needs of the child
- The parental skills and abilities of anyone seeking custody or visitation
- Any potential emotional or physical danger faced by the child, now or in the future
- The stability of the home where the child will reside
- Any acts or omissions by either parent that are inappropriate in a child-parent relationship (as well as any legitimate excuses for such conduct)
- Whether there are programs available to help the parents promote the best interests of the child
- The wishes of the child
- The plans for the child by the person seeking custody or visitation
What Rights Does a Parent Typically Have with Respect to a Minor Child?
In the absence of proof of unfitness as a parent, a father or mother typically has the right to:
- Some level of physical custody—The parent may be granted primary physical custody (known in Texas as managing conservatorship) or may be granted visitation/access to the child
- Legal custody—Both parents have the right, unless the court finds otherwise, to participate in decisions regarding the child’s education, religious upbringing and medical needs and treatment
- The right to make appropriate gifts to a minor child or to pass an estate on to a child
- The right to a portion of a child’s estate in the event of a child’s death
When Does Balancing the Best Interests of the Child and Protecting the Rights of the Parent become a Problem?
The law is clear in Texas—where the best interests of the child and the rights of the parent are not in accord, the best interests of the child will be paramount. The two most common circumstances where these two issues come into conflict are when there is evidence of domestic abuse or violence, and when there is evidence of substance abuse.
- Alcohol or drug abuse by a parent—If a parent’s use of controlled substances poses a danger to a child, the court may get involved, either limiting or suspending access to the child. Typically, the other parent must bring the matter to the court.
- Domestic violence or abuse—When there is credible evidence of domestic violence or abuse, either of a child, a spouse or both, the court can issue a restraining order, limiting or preventing access to the child. The custody and visitation order may also be temporarily or permanently modified to allow only supervised visitation or to prohibit access.
Contact the Experienced Divorce and Family Law Attorneys at Bailey & Galyen
At the law office of Bailey & Galyen, we bring informed, compassionate and aggressive advocacy to men and women involved in custody and visitation disputes in Texas. We offer a free initial consultation to every client. To speak with a dedicated and knowledgeable immigration law attorney, contact us by e-mail or 844-402-2992 call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.