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Custody

Whether one is going through a divorce or a suit affecting the parent/child relationship (SAPCR), custody can be a huge focal point for parents. The best interest of the child is the guiding factor for courts when considering a custody determination. Although the Texas Family Code presumes that it is in the child’s best interest for both parents to be joint managing conservators, and that the child should maintain a frequent and continuing relationship with both parents, those presumptions are rebuttable. This presumption assumes that the parents provide a safe, stable and non-violent environment for their child. Rebutting the presumptions under Texas law means that either parent may feel that he/she is the better parent, and ask the court to appoint him/her as a sole managing conservator, which many people refer to as “full custody.” It may also mean that one parent takes the position that the other parent is inappropriate or even dangerous to the child’s wellbeing. This may be the case if there has been a history of child abuse or neglect by a parent, a history of family violence, or if a parent has challenges with alcohol or substance abuse.

Battles over custody at temporary orders or upon final trial are incredibly fact specific. Making a case for sole managing conservatorship or supervised visitation with the other parent requires relevant and admissible evidence such as the testimony of witnesses with knowledge of relevant facts (e.g., the parent, teachers, child caregivers, psychologist, etc.), documents, and photographs. The Court may appoint third parties such as an attorney ad litem, an amicus attorney, parenting coordinator or parenting facilitator. Additionally, the parties themselves may hire experts such as child psychologists to provide testimony regarding the best interest of the child. However, it is ultimately the judge who rules after hearing evidence and arguments of counsel.

Given the circumstances, it is also possible that agencies such as Texas Department of Family and Protective Services (a/k/a Child Protective Services) may intervene in the case if there was a report of child abuse or neglect. Sadly, some parents will make false allegations of child abuse against the other parent to gain an advantage for a custody battle. False allegations are not tolerated well by the Court, and if it becomes evident that the allegations are false, the Court may impose a civil penalty not exceeding $500.00. While that may seem like a small punishment, make no mistake that the Court will remember a bad faith allegation, and it does impact that parent’s credibility and character.

Finally, third parties such as grandparents may intervene into a custody case to seek possession and access or even custody of a child. Specific statutes and case law govern grandparent’s rights and 3rd Party Standing.