CHILD CUSTODY2019-05-06T13:07:03-05:00

Child Custody

“Cut the living child in two and give half to one and half to the other.”

          ̶  King Solomon, 1 Kings 3:25 (NIV).

No decision is more difficult than having to decide which parent should have custody of a child.  Child custody battles can become extremely contentious, and the parties can quickly lose focus of their primary objective.  Child development experts overwhelmingly agree that most children should spend significant time with both parents.  In rare cases, however, there may be legitimate reasons to award sole custody of a child to one parent.  Such cases may involve abuse, serious mental health issues, substance abuse, criminal conduct, addiction, alienation, or other issues.  Those rare cases require experienced family law attorneys like those at Bennett, Weston, LaJone & Turner, P.C.

Children in Divorce Disputes

When a family includes children, divorce proceedings can be particularly hard.  Many parents inadvertently embroil their children in the conflict with their spouse, sometimes with the best of intentions.  Some deliberately use their children as pawns to secure more favorable settlement terms or to emotionally hurt their spouse.  A few are able to successfully separate their anger, hostility, and disappointment with their spouse from the relationship between parent and child.  Parents who are able to set aside their differences and work together in a constructive manner will usually find that the divorce court is willing to give them more latitude rather than imposing and enforcing rigid custody and visitation provisions.

Parents should very carefully consider the effect that their divorce proceedings are having on their children.  Grades may plummet.  Disciplinary problems may increase.  Behavior may change.  Even a child’s health may deteriorate.  Broadly speaking, divorce courts try to keep the best interests of the children at the forefront of their decisions.  Various courts have formally or informally adopted some variation of a Children’s Bill of Rights in Divorce.  Divorcing parents need to remember that they are both important to their children and that they both will have occasions to interact throughout their children’s lives.

Children of Unmarried Parents

Many children are the offspring of parents who were never married.  Some parents were involved in a long-term romantic relationship that did not result in marriage.  When such relationship ends, the dynamics are very similar to those of divorcing parents.  Parents may notice many of the same changes in their children as in divorce proceedings.  Parents capable of working together will generally find the divorce court more receptive to flexible custody and visitation provisions.

Others parents only had a brief relationship or, sometimes, a “one-night stand.”  Some may have even conceived a child as a result of an extramarital affair.  In some of these cases, a child may only have limited contact with one parent.  One parent may not even know about the child, or may believe the child to be another’s.  Each of these situations presents its own set of legal challenges when a child’s parents are unable to mutually agree on decisions affecting the child.

Joint Custody vs. Sole Custody

Joint conservatorship is presumptively in the best interests of the children in Texas.  A parent insisting upon sole conservatorship usually bears a heavy burden to show that the other parent is manifestly unfit or imminently threatens the child’s physical or emotional well-being.  Courts are more willing to consider sole conservatorship when the parent’s relationship was brief and the child has had limited contact with one parent.

Some parents fight for joint conservatorship under the mistaken assumption that it automatically eliminates any obligation to pay child support to the other parent.  Joint conservatorship rarely eliminates the need for child support.  A parent with a higher-earning job or occupation will often still be required to make regular periodic payments of child support to the other parent.  Provision will also be made for health insurance and medical support of unreimbursed health expenses for the child usually based upon what options are available to each parent.

Joint conservatorship does not always mean equal periods of possession.  Often, one parent will have primary physical possession of the children even when both share joint conservatorship.  The Family Code contains a standard possession schedule, which can be modified by the parties or by the court to suit the particular needs of the children in a given case.  Over the years, family practitioners have developed particular adaptations to address various common situations including Jewish and Muslim religious holidays, parents whose jobs require unusual shifts like pilots or firefighters, parents in the armed forces or reserves, and parents with health or substance abuse problems.  In the relatively rare situations where parents share equal possession time, adaptations exist for week on/week off, 2-2-5-5, 2-2-3, and split custody schedules.

Extraordinary Custody Disputes

Difficult custody cases can arise when one or both parents have a history of abusive behavior toward a child, suffer from serious mental illness, or have substance abuse or other addictions.  Often, mental health professionals are called upon in such cases to offer expert testimony.  It may be necessary for such professionals to perform psychological testing on the parents and child, and to explain the results of such testing to a judge or jury.  Our family law attorneys understand the most commonly used psychological testing in custody cases, as well as the evidentiary requirements and limits on such testimony.  Our experience with these types of cases can help you protect your rights and understand your options in such cases.

Abuse allegations and parental alienation offer particularly challenging situations.  Often, the only eyewitness to a parent’s conduct is the child or a sibling.  Divorce courts are often reluctant to allow counsel to interrogate a child on the witness stand.  Proxies, including social workers, may be appointed to interview the child, collect documents, and secure statements to corroborate or rebut the accusations.  Sometimes, the court will appoint an attorney or CASA advocate to represent the child’s interests.  Child protective services (CPS) may already have a lengthy history with the parents involved.    Understanding this process allows our family law attorneys to advise and guide you through it.

Particular Issues in Custody Cases

The family law attorneys at Bennett, Weston, LaJone & Turner, P.C. are experienced with a wide range of custody issues, including the following:

  • Contested child custody disputes in divorce proceedings
  • Original suits affecting the parent-child relationship
  • Child custody modification proceedings
  • Physical, sexual, and emotional abuse
  • Serious mental health issues
  • Substance abuse issues
  • Addictions
  • Parental alienation
  • Children with special needs

The above list is representative is not intended to be exhaustive.  Given the experience of our family law attorneys, it would be surprising if your particular issue is so unique that one or more of our attorneys haven’t previously encountered a similar situation.  For all of your child custody needs, contact us to schedule a consultation.

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