Child Custody and Visitation
How does the court determine which parent should have primary custody of the child(ren)?
Texas law presumes that the joint custody of the child is in the best interest of the child. However, only one parent will generally have the "right to determine the primary domicile of the child," which is really means that only one parent will have "primary custody." The parent having primary custody will be entitled to receive child support from the noncustodial parent.
The court will decide the issue of child custody based on the overall principle of the "best interests" of the child. To make this determination, the court will consider a variety of factors, such as who has been the primary caretaker of the child, what are the living arrangements, who has been putting the child to bed, taking the child to the doctor, making dinner, supervising the child, and participating in the child's education.
Also, the court looks at other factors, such as persons the parent may allow the child to interact with (i.e. the parent's paramour or spouse), any evidence of bad parenting decisions made by either or both parents, any patterns of family violence involving the child or the parent's household, work schedules of the parents, earning capacity of the parents, overall stability of the parent's home, availability of extended family support (e.g. grandparents), and so forth.
The court may also involve other professionals in its custody evaluation (usually at the expense of the parents), such as psychologists, counselors, social workers, psychiatrists, or lawyers. The court may order a social study into the specific circumstances of the parents' home environments, which would be performed by a social worker and/or mental health professional. Additionally, a psychological evaluation of either or both parents may be ordered. An attorney may be appointed to represent the interests of the child (i.e. amicus attorney, guardian ad litem, or attorney ad litem) to ensure that the child's wishes and best interests are adequately represented.
Depending on the individual beliefs of the judge, courts still sometimes tend to favor mothers for custody of younger children (sometimes known as the "tender years" doctrine), but men are gaining ground in custody battles if they can show they are would provide the best overall environment for the child.
Texas law provides that children 12 years of age or older can express a preference with the court as to which parent they would like to live with, which the court will consider in making the custody decision. The judge may (and in some cases must) interview the child expressing such a preference. However, the court still has the overall discretion regarding custody, and may accept or reject the child's preference as it deems appropriate.
How is visitation for the non-primary parent determined?
Most divorces involving children name one parent as the primary Joint Managing Conservator and grant the other parent (also a Joint Managing Conservator) "Standard Possession Order" visitation. The visitation is spelled out in great detail in the statute (Texas Family Code sections 153.311 through 153.317) and should also be spelled out in detail in the Final Decree of Divorce.
It should be noted that the Standard Possession Order is, in essence, a "default" arrangement. That is, the parents are free to agree between themselves when visitation will occur, and the details of the visitation (such as locations for exchanges of children). Thus, terms of the Standard Possession Order apply only if the parents do not agree otherwise.
The Pederson Law Office has extensive experience in representing client's in cases involving child custody and visitation issues. Contact Pederson Law Office today for a free telephone consultation.
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San Antonio, TX 78212
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