Wednesday, June 17, 2015

Child custody and Child Visitation in Texas

Resolving custody and visitation issues is the most emotional phase of a Texas family court case.  

In most cases, the parents are nervous and scared as they await the court’s decision on the issues involving custody and visitation.  

Many parents may be unaware as to the factors the Texas family courts consider in these decisions. No case is won or lost on one issue. The parent complaining will need to show an ongoing and repeated problem. And the mistake must be within the last 2 years. I've seen men that have felonies get custody of their children because their prison time happened 15 years ago and they have been employed and leading a clean life since getting out of prison. 

The best interests of the children take priority in any family court decision.  

The Texas Family Code does not define "best interests" so it's left up to the judge to determine what that means. Each judge has their own opinion of what this term means. Plus, appellate courts have limited grounds to reverse a lower court judge. Appeals are expensive and take a long time.

To determine which arrangement is in the children’s best interests, the family courts examine a number of factors.  These include the parent’s relationship with the children, the health of the parties and the children, the residences of the parents, whether there is any history of abuse, and the ability of the parents to provide financially for the children. 

Texas law also allows children over the age of 12 to meet with the judge in chambers and state their preferences.  However, it is left to the discretion of the family court judge whether to consider the child's opinion when making the final decision.

For example, one judge met with the kids and came out with a piece of paper hand-written by the Mom on what they were to say to the judge. The mom did not get custody.

Many judges will appointed an attorney to represent the child's interests in contested family law cases. This attorney is called an amicus.  Both parties pay for this attorney's services. Their fees start at $500 and go up to $25,000 or more. Many run $1,500 - $5,000. It's a lot of work. And both parties usually hate the amicus if the person tries to do their job. Normally the judge appoints an attorney they know and respect. Even when the amicus charges a reduced legal rate because there is so much work involved it can easily run thousands of dollars. Judges expect these people to be paid in full. 

Issues involving the children are never set in stone.  After custody and visitation issues are finalized in a case, should a substantial change in circumstances occur, the parents may seek a modification the family courts.

Often when a child reaches puberty, custody changes. This happens all the time - especially when boys want to see their Dad's more.

Many people are unaware that it's important to get as many "rights and duties" as possible regarding the children. You can ask that most of the rights be independent or by agreement with a tie-breaker if the parents cannot agree.

And a parent can elect for an EXPANDED POSSESSION ORDER - this gets the non-custodial parent around 45% of the time with the kid. It does not mean that the non-custodial parent won't pay child support! 

It is presumed JOINT MANAGING CONSERVATORS in Texas. This term does not mean that one person won't pay the other child support.

Child support is for the child - the custodial parent is not getting rich off of child support - especially a parent that is paying for daycare and diapers then usually their child support is less than diapers, formula and daycare.

Both parents are expected to contribute to their child's needs. So many stay-at home parents have to go out and get a paying job. 

Many times the stay-at home parent ends up living in poverty because they cannot make what the other parent used to make. It's not fair but I've seen it happen many times. I often suggest that people stay married if they want their lifestyles to remain the same. 

When a family breaks up, there are now 2 rents, 2 utilities, higher grocery bills, higher clothing costs for the kids, etc. Breaking up a family is expensive. (It's cheaper to keep her/him.)

I encourage people to read the many Texas family law websites out on the internet. Please don't talk to your friends and family unless they are family law attorneys - corporate attorneys tend to give poor advice! 

Look on the Houston Bar Association's website for their free family law booklet.  Look on for some good basic Texas family law information. There is even the Texas Attorney General website. There are many Texas child support calculators on the internet.

If you are from another country or another state, you are in for a huge surprise. You are now in Texas and Texas is not in step with many states regarding allowing our children to leave the state.

If you re-marry, get transferred or want to move to be closer to family, then the other parent will be given custody and you can "visit" your child and pay child support. It does not matter if your new spouse is in the military and being transferred, if the other parent was an active parent then the kids might go to that parent. And women do not always get primary custody just because they gave birth. Texas is a gender neutral state. When I litigated I represented 50% men and I got many men custody. For example, I mediated a case where Mom traveled all over the world on a weekly basis and dad stayed home with the kids for 15 years. Dad never worked. Mom could not believe that she would not get custody and that she had to split all assets 50/50. Welcome to Texas! 

I've seen judges on many occasions issue a writ of habeas corpus for the child when one parent has left the state and not appeared at the Texas hearing. Most Texas judges want the children to live close to both parents so that both parent can co-parent their child.  If a child was born in Texas, then the child remains a Texas resident for 6 months after he/she leaves the state. Texas will win the jurisdictional argument in the new state. (And yes I've been involved in a case where the Texas judge called the judge in another state and demanded "his child back now"! Much arguing and screaming occurred but the child was returned to Texas within 2 days.)

In child custody and child visitation cases, never assume anything. Otherwise you might look like make a huge mistake. 

Before you do anything, talk to an experienced family law attorney in YOUR county.

If you want a creative resolution to your child custody or child visitation case, then consider mediation. Mediators do not have to follow the Texas Family Code which Judges are required to follow.

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