The Top 10 Child Custody Questions In Texas
John Wilson • December 7, 2019
10 Things You Must Know About Texas Child Custody
Texas child custody can be extremely stressful and emotional for the child, the parent, and the guardian. Below are frequently asked questions that Texas family's have when seeking help from a board certified divorce lawyer and child custody lawyer. Our Dallas board certified divorce lawyers and child custody attorneys are ready to assist you in child custody litigation and can aggressively represent your legal rights.
How Do I Get A Child Custody Order?
A new child custody case can be established, under Texas Family Code 152.201, if i) at the date of commencement of the proceeding, the state is the “home state” of the child; and ii) you, and your child, has lived in the state for approximately six (6) months at the time you are filing for custody of your child. This means that jurisdiction has either been declined by a court of another state or it was never in another court's power to begin with. If you are moving to Texas, you can learn about the Texas Uniform Child Custody Jurisdiction Act and the requirement to establish the "home state" of the child. But if you've lived in Texas for the past six (6) months, and in a particular Texas county for the proceeding ninety (90) days, that it is that Texas county in which you should file your divorce and your child custody suit. If you need emergency custody, you can always ask any Texas Family Court to assume control of your child custody case on a temporary basis.
How Do I Modify A Child Custody Order?
Under Texas Family Code Section 152.202, the Court that originally created the child custody order has the exclusive continuing jurisdiction over any modification of that order. In fact, in Texas, if any other court makes a non-emergency ruling in a child custody matter and that court is not the court with exclusive continuing jurisdiction, then that court's order is per se void as that court had no legal authority to make a child custody order. However, a court of continuing justification will lose the power to adjudicate a child custody matter in the event the child has lived ninety (90) days or more in another Texas county and a timely request to transfer to that new Texas county has been filed by a parent or guardian. Until a child turns eighteen (18) years of age, or is emancipated, custody orders are never terminated and can be modified.
What Type of Custody Can I Get in Texas?
Individuals may be appointed as conservators, and those conservators are granted rights of possession and access to a child under Chapter 153 of the Texas Family Code. Conservatorship is synonymous with custody in Texas. There are two types of conservatorships: i) Managing Conservator, and ii) Possessory Conservator. Each managing or possessory conservator can have rights and duties as either sole managing conservator or joint managing conservator. A sole managing conservator generally has the right to make most decisions without regard to the other parent's opinions, whereas a joint managing conservator must generally confer with the other parent before making decisions. A managing conservator typically has the right to determine the primary residence of the child, and the possessory conservator generally has visitation.
How Do I Get Sole Custody Of My Child In Texas?
It is possible to get sole custody of your child if a court decides that you being a sole managing conservator would be “in the best interest of your child.” The court, along with your testimony and the testimony of any witnesses, balances the needs of the family and the child when making its final decision in determining child custody; however, the child is the primary focus of the court and not the parent. Being the primary caregiver for your child is not enough to be appointed sole managing conservator. Generally, to get sole custody, there must be some overarching need such as a child's disability or such significant parental discord (e.g. family violence) requiring a finding that one parent should have sole control over the decisions for a child. Sole custody may also be granted in situations where there has been family violence, or when the other parent must be away for extended periods of time and is otherwise unreachable.
How Does The Court Decide Who Should Be The Primary Conservator?
When the court decides at a temporary or final hearing which parent gets the exclusive right to designate the primary residence of the child, they look at a number of standards to affirm their reasoning. Texas law provides that both parents be considered equally without regard to parental gender, but the court takes into consideration who the primary caretaker of the child has been before finalizing its decision:
- Who took care of the basic needs of the child (e.g. food, clothing, shelter)?;
- Who took the child to daycare, school and doctors appointments?;
- Who attended schools meetings for the child?;
- Who participated in extracurricular activities with the child?; and
- Who helped with the child's homework?
At What Age Can My Child Decide Where He/She Wants To Live?
A child in Texas cannot decide where he or she wants to live; however, at the age of 12, the child can be interviewed by a judge at the request of either party by filing a "Motion to Confer With Child." Most courts do not like putting children in the middle or interviewing children, but rather would prefer a therapist or psychologist opine as to the mental health and well being of the child. It is true that in Texas children were able to file sworn affidavits designating where they wanted to live; however, that law was repealed.
What Rights To A Child Can A Parent Get In Texas?
Parents who are deemed joint managing conservators under the Texas Family Code Section 153.074, will be granted the following right unless those rights are otherwise limited by the court or agreed to by the parties. These rights can either be given jointly, exclusively or independently, depending on the Court's ruling. These rights can also be removed from a parent if such rights are not in the best interest of a child:
- The right to consent to medical, dental, and surgical treatment involving invasive procedures;
- The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
- The right to consent to marriage and to enlistment in the armed forces of the United States;
- The right to make decisions concerning the child’s education;
- The right to the services and earnings of the child; and
- Except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as agent of the child in relation to the child’s estate if the child’s action is required by the state, the United States, or a foreign government.
In addition to the parental rights above, a parent managing conservator or a sole managing conservator will be given the following additional rights in raising a child:
- The right to designate the primary residence of the child;
- The right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
Do I Have To Pay Child Support In Texas?
Child support is based on net income from all sources, and the court typically is obligated to award one parent child support unless the parents can agree otherwise and that agreement is in the best interest of the child. Importantly, your employer is required by law to withhold child support from your wages, and you are required to notify your employer of your child support obligation. Child support obligation will slightly decrease if you have a legal obligation to support other children which are not presently before the court. For a review of child support obligations in Texas see our Texas Basic Guideline Child Support web-page.
Does Family Violence Matter In Child Custody Cases?
The court determines the conservatorship of the child in every child custody case. Although the presumption in Texas is that parents should be named as joint managing conservators, the court always seeks out the “best interests of the child”. Below is a list of standards that the court considers before making a final decision regarding child custody in Texas:
- The child’s stated desires;
- The present and future emotional and physical needs of the child;
- Present and future danger to the child;
- The financial and parental abilities of both parents;
- The stability of the home environment;
- The plans each parent has for the child; and
- Whether there is evidence of domestic violence,
The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child. Section 153.004 of the Texas Family Code provides for the following in domestic violence cases: "Sec. 153.004. HISTORY OF DOMESTIC VIOLENCE OR SEXUAL ABUSE. (a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party's spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit."
Does Being Remarried Increase My Chances of Gaining Custody of My Child?
The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child; so, remarriage alone is not enough to change the court's focus. Importantly, Section 153.003 of Texas Family Code provides that the court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining the following conservatorships:
- Which party to appoint as sole managing conservator;
- Whether to appoint a party as joint managing conservator; and
- The terms and conditions of conservatorship and possession of and access to the child.
However, from a practical perspective, being in a stable two-person family environment may very well be in the best interest of the child.
Strategic Legal Representation for Complex Business Litigation
Female Divorce Attorneys in the Dallas-Fort Worth Area In many instances, divorce cases are challenging and emotionally taxing experiences. For this reason, it’s common for people to prefer working with an attorney of the same gender because they feel as though the attorney can empathize and understand their situation more. At the end of the day, the gender of your attorney may not affect the outcome of your case, but it’s important to feel as comfortable as possible while navigating through the process. At Wilson Whitaker Rynell, our experienced female divorce attorneys offer compassionate and empathetic approaches while they develop a comprehensive legal strategy to represent you. Why Should You Choose a Female Divorce Lawyer? There are many reasons why hiring a female divorce attorney can help you throughout your divorce. For one, they often have experience working on issues that disproportionately affect women in divorce such as spousal support (alimony), child custody disputes, and asset division. Additionally, female divorce lawyers offer a unique level of empathy, understanding, and communication. As a result, many clients feel that they are more approachable and compassionate, which is beneficial when dealing with the emotional turmoil of the process. More importantly, female divorce attorneys are more familiar with how the court treats women in divorce cases and use this knowledge to strategically protect their clients’ interests, whether male or female. Why Our Female Divorce Attorneys May be Right for You At Wilson Whitaker Rynell, our female divorce attorneys are skilled, knowledgeable professionals, they also have many years of experience in handling complex divorce cases. Whether it’s issues surrounding custody of children, alimony, or asset division, our female divorce lawyers ensure each client receives high-quality legal advice. Our firm’s female divorce attorneys provide the highest level of personal attention, ensuring that each client’s unique needs and concerns are addressed through every step. Unique Challenges Women Face in Family Law Disputes in Texas Family law disputes can be emotionally charged and legally complex, especially for women navigating the process in Texas. Women often encounter unique challenges due to their roles in the marriage and family dynamic, particularly when it comes to child custody, child support, and the division of marital assets. Child Custody Challenges In many marriages, women take on the primary caregiving role for their children. However, when it comes to custody decisions, courts in Texas prioritize the best interests of the child over parental gender. While this often works in favor of mothers, women may still face hurdles in proving they are better suited to provide the stable environment the child needs, especially if their ex-spouse disputes custody. Factors such as work schedules, living arrangements, and financial stability can come under scrutiny. Child Support Issues While Texas law allows women to seek child support, collecting these payments can sometimes prove difficult. Women awarded child support may find themselves dealing with ex-spouses who delay payments, make partial payments, or refuse to pay altogether. Enforcing child support orders often requires legal intervention, which can add to the emotional and financial strain. Division of Marital Assets In Texas, a community property state, marital assets are typically divided equitably during divorce. Women who are awarded assets such as the family home may face challenges related to maintaining the property, refinancing a mortgage, or covering associated expenses. Additionally, women who sacrificed their careers to support their spouses or raise children may feel disadvantaged during the division of assets if their earning potential is limited compared to their ex-spouse. How Your Divorce Attorney Will Support You Each divorce case is unique, and having an experienced attorney standing by you is vital. Whether you’re dividing assets, negotiating child custody, or managing other complex legal issues, the female divorce attorneys at Wilson Whitaker Rynell are here to protect the interests of you and your family. Our attorneys will take the time to understand your unique circumstances and empower you to make informed decisions that support your career, family and future. When you choose a female divorce attorney from Wilson Whitaker Rynell, you can trust that they will: Prioritize your family’s best interests. Negotiate with integrity, ensuring fairness and transparency. Clearly explain all your options and their potential outcomes. Help you create the future you want by offering trusted legal advice. Use efficient methods to minimize unnecessary costs and keep the process manageable. Navigating family law disputes requires a thorough understanding of Texas family law and strong advocacy. Women facing divorce or other family law issues are encouraged to seek an experienced family law attorney who can provide personalized guidance. A skilled lawyer can help craft a strategy that protects their rights and ensures a fair resolution. This includes representing their interests in court, negotiating settlements, and helping enforce orders such as child support or spousal maintenance.
Understanding Writs of Execution in Texas: A Layperson’s Guide If a court determines that someone owes money to another party, the debtor—referred to as the "judgment debtor"—typically has 30 days to pay off the debt. If the debt remains unpaid after this time, the creditor, or "judgment creditor," can take legal action to enforce the payment through a Writ of Execution . This legal process, governed by Texas law, enables creditors to collect what they are owed by seizing and selling the debtor’s non-exempt assets. What Is a Writ of Execution? Under Texas Rules of Civil Procedure 629 , a Writ of Execution is a court order that authorizes a sheriff or constable to seize the debtor’s property to satisfy the debt. This writ is an essential tool for creditors when voluntary repayment has not occurred. Once the writ is issued, it is handed over to a county constable or sheriff, who is required to act “without delay” in collecting the debtor’s real and personal property. The seized property is then sold, and the proceeds are used to pay off the debt. If multiple writs are filed against the same debtor, the assets are distributed in the order the writs were received. What Property Can Be Seized Under a Writ of Execution? Texas law is very specific about which types of property can and cannot be seized to satisfy a judgment. Exempt Property Certain assets are protected from seizure under Texas Property Code § 41.001. These include: The debtor’s homestead (primary residence) Wages earned from employment Professionally prescribed health aids Workers’ compensation benefits College savings plans Some insurance benefits Personal property valued up to $50,000 for individuals and $100,000 for families Unique to Texas, the law also protects items like family Bibles, two firearms, pets, and for rural residents, livestock (e.g., 12 head of cattle and 120 fowl). This extensive list reflects Texas's cultural heritage and values. Non-Exempt Property Assets that are generally not exempt include: Vacation homes Timeshares Pleasure boats Airplanes Jewelry exceeding certain value thresholds The specific procedures for seizing different types of property are detailed in Texas Rules of Civil Procedure 639 . Can a Writ of Execution Be Avoided? Judgment debtors have a few options to avoid the execution of a writ: Filing a Supersedeas Bond A supersedeas bond can temporarily halt enforcement of the writ. This bond, filed with the county clerk or justice of the peace, preserves the status quo while the debtor seeks further legal remedies. This option is governed by Texas Rules of Civil Procedure 634 . Challenging the Execution Debtors can file a claim for wrongful execution in situations such as: The debt has already been paid Exempt property is being seized The levy is excessive Additionally, courts take extra care to protect property classified as a homestead under Texas Property Code § 41.002(c) . When only one spouse is responsible for the debt, Texas Family Code § 3.202(a) and related provisions provide guidance on levying against community or separate property. The Role of County Officials in Executing the Writ Once the writ is issued, its enforcement falls on county officials, typically a sheriff or constable. These officials must act in accordance with Civ. Prac. & Rem. Code § 34.072 , which requires them to execute the writ and report back to the court. They must: Give proper notice of the sale of seized property Ensure the proceeds are appropriately delivered to the creditor Avoid overstepping legal boundaries, such as seizing exempt property Failing to execute the writ properly can result in serious consequences, where a sheriff’s refusal to levy on a property initially listed as exempt (but later deemed abandoned) led to court action and damages awarded to the creditor. Preventing Fraudulent Transfers One challenge creditors face is when debtors attempt to hide or transfer assets to avoid collection. To address this, Texas follows the Uniform Fraudulent Transfer Act under Tex. Bus. & Comm. Code § 24.001 et seq .. This act provides legal remedies to creditors when a debtor’s transfer of assets is deemed fraudulent. Effect of a Defendant's Death on Writs of Execution Under Civ. Prac. & Rem. Code § 34.072 , the death of a defendant after a writ of execution is issued halts execution proceedings. However, any lien acquired from the writ's levy is still enforceable by the county court when paying off the deceased's debts. Why Proper Execution Of The Writ Is Crucial The rules for filing and serving a Writ of Execution are strict and detailed. Missteps, such as filing the writ in the wrong county, failing to serve the proper parties, or missing key deadlines, can lead to delays or even render the writ ineffective. Both creditors and debtors must ensure compliance with these rules to avoid unnecessary complications. For creditors, failure to properly enforce the writ could mean losing the opportunity to collect on a judgment. For debtors, not responding appropriately to a writ could result in the loss of valuable assets, even those that might have been exempt.
Understanding Venue Selection and Motions to Dismiss in Texas Civil Litigation
Wraparound Mortgages in Texas and The Pros and Cons of Seller Financing
Appeals Through JAMS Arbitration: A Structured Approach to Review
How One Texas Court is Halting the Corporate Transparency Act
How to Revive an Abandoned Trademark Application with the USPTO
Navigating the Use of Third-Party Trademarks in Competitive Advertising: A Legal Guide
The Wilson Legal Group are Dallas attorneys that specializes in Patents, Trademarks, Copyrights, Trade Secrets, Complex Litigation, Business/Corporate Law, Family Law and Real Estate Law. At the Wilson Legal Group, our clients are our focus. Our philosophy is simple and straight-forward: Understand our clients' needs, hopes, and interests in order to help them flourish. Our staff strives to build strong relationships with our clients in order to appreciate their best interests and help them achieve their goals.
Have an idea for a blog? Click and request a blog and we will let you know when we post it!
Let's talk about your legal issue
Wilson Legal Group P.C.
d/b/a Wilson Whitaker Rynell
(972) 248-8080 (Dallas) MAIN OFFICE
(713) 830-2207 (Houston) Appointment Only
(512) 691-4100 (Austin) Appointment Only
For more information on how we can assist in your intellectual property, commercial litigation, divorce, or other personal needs, let us know how we can help you:
How Can We Help You?
Disclaimer:
This form does not establish an attorney-client relationship, and should only be used to contact the firm about scheduling a call or meeting. No confidential or sensitive information should be sent using this form.
We represent clients nationwide, including Dallas, Austin, Houston, and other Texas areas such as Fort Worth, Arlington, Carrollton, Plano, Allen, Lewisville, Flower Mound, Irving, Denton, McKinney, North Richland Hills, and all cities within Dallas County, Tarrant County, Collin County, and Denton County.
OFFICES
ABOUT
CONTACT
BLOG
Wilson Whitaker Rynell
16610 Dallas Parkway, Suite 1000
Dallas, Texas 75248
972-248-8080 (MAIN)
972-248-8088 (FAX)
info@wrrlegal.com (E-MAIL)