Child Custody

It is highly preferential for parties to try and resolve child custody disputes without going to the court. Garcia Family Law has extensive experience in resolving issues of custody through negotiations or mediation. That said, sometimes parties are simply unable to find a middle ground on these issues. In those situations, we stand fully prepared to litigate fervently on your behalf.

Every custody battle is examined by a judge on a case-by-case basis. There is no standard procedure for determining the ideal custody arrangement. Every situation and each family is different. The court must address four issues: (1) conservatorship; (2) rights and duties; (3) parenting time/visitation; and (4) child support. In addressing these issues, the court focuses on promoting the “best interests of the child.”

In Texas, what people think of as custody is called conservatorship. In other words, a child’s guardian is referred to as his or her conservator. There are two types of conservators: (1) managing conservators (i.e., legal guardians) and (2) possessory conservators (i.e., physical guardians). Managing conservators are further divided into two categories, (1) sole managing conservator and (2) joint managing conservator. Under the Texas Family Code the presumption is that the parents should be named as joint managing conservators. The real battle in most child custody cases relates to which parent is the primary possessory conservator (i.e., the parent with whom the child will reside).

Texas law expresses a preference for parents to share as equally as possible in the custody of a child. Absent situations of parental misconduct, the courts favor granting both parents joint managing conservatorship. That said, because joint possessory conservatorship can be difficult in practical terms, the courts weigh several factors in determining where the child’s primary residence should be. Among other considerations, courts examine: (1) the parenting abilities of each parent; (2) the child’s wishes (if he/she is old enough); (3) any current or future emotional or physical danger to the child; (4) the current and future emotional and physical needs of the child; (5) the programs available to assist each parent to promote the best interests of the child; (6) the plans for the child by each parent; (7) the stability of the proposed home; and (8) relationships with siblings and extended family.

Child Support

Under Texas law, physical custody determines which party will pay child support. In the vast majority of cases, the non-custodial parent pays child support. The amount of support is based on a percentage of the non-custodial parent’s income, which is determined by a fee schedule.

Visitation

In Texas, the non-custodial parent still has visitation rights. Visitation is referred to as “possession and access.” The court order provides for the amount of time awarded to the non-custodial parent. The presumption is that the best interests of the child are served when both parents are actively involved in the child’s life.

Modification of a Prior Order relating to Child Custody, Child Support and Visitation

A parent may file a petition to the court to modify the prior order related to child custody, child support and visitation. In determining whether a petition for a prior order for custody and visitation should be granted, the court looks at what is in the child’s best interests. Sometimes a child’s living circumstances have changed to make a custody modification in his or her best interests. In such circumstances, parents may present evidence that the child’s circumstances have changed since the original order was signed. Changes in custody may also take into account the written preferences of a child over the age of 12.

There are three ways to modify child support: (1) three years have passed since the time the prior order was signed by the judge. In this case, it is unnecessary to show a substantial change in circumstances necessary to have child support modified; (2) a substantial change in circumstances has occurred to one of the parties to the suit or to a child the court has jurisdiction over; (3) the parties agree to the modification.

Adoption Law

To adopt a child in Texas, prospective parents must meet the following minimum requirements: (i) be at least 21 years of age; (ii) be in good physical health; (iii) pass a criminal background check; (iv) be able to financially provide for a child; and (v) if married, must have been married for at least two years. If a child is over 12 years of age, the child must consent to be adopted.

Termination of Parental Rights

Texas law provides ways for parents to both voluntarily and involuntarily terminate their rights.

1. Voluntarily termination of a parent’s rights: Voluntary termination means that you agree to relinquish all rights as a parent. In order to voluntarily terminate your rights, you must sign an affidavit of relinquishment of parental rights. The affidavit must contain: (i) very specific information about the child, (ii) an acknowledgment that the parent relinquishing his or her rights has been adequately informed of his or her parental rights and duties, and (iii) a statement that designates someone else as the managing conservator of the child. The affidavit cannot contain any provision for post termination contact between the parent and child. The signing of the affidavit does not immediately terminate the parent-child relationship. Instead, it provides a basis for the court to enter a judgment of termination. The court must also find that termination is in the best interests of the child.

2. Involuntarily termination of a parent’s rights: If you wish to have a parent’s rights terminated because the parent is either neglectful or a danger to a child, you can file a case to terminate the parent’s rights. You must identify the parent’s conduct that warrant’s the termination and clearly establish that termination is in the best interests of the child. A person seeking to involuntarily terminate a person’s parental rights must prove the alleged grounds for the termination by clear and convincing evidence. The court will then make a decision based on the evidence presented if termination is warranted.

Paternity Determinations

A determination of paternity refers to the process of determining the legal father of the child. In Texas, paternity is automatically established if the parents are married to one another at the time the child is born. The husband is the legal father and his name will be listed on the child’s birth certificate. If the parents are not married to one another, the child has no father until paternity is established. In these cases, paternity can be established by the father voluntarily signing an Acknowledgment of Paternity. When the mother and father agree that the father is the biological father, the father and mother both sign the “Acknowledgment of Paternity. If either the father or mother dispute paternity, the court may order DNA testing. If, after DNA testing, the court determines that the father is in fact the biological father, the court will issue an order adjudicating parentage, making the father the legal father and his name will be added to the birth certificate.