A child custody case may arise as part of a divorce or it may occur separately either as its own original suit or as the modification of a pending order. In order to obtain custody of a child at an original proceeding, the moving party must show the court that he or she is the better caretaker parent. The legal test is the best interest of the child. There is no legal presumption in favor of either parent. A father does not have to show the mother to be “unfit” to obtain custody. If the custody case arises from the modification of a prior order then the moving party must show that there has been a material and substantial change of circumstances affecting the moving party, the responding party or the child whose custody is sought; he child is 12 years of age or older and has expressed in chambers to the judge the child’s preference as to the conservator with whom the child prefers to primarily reside; or, the conservator with the exclusive right to establish the primary residence of the child has voluntarily relinquished possession of the child for six months or more to the person seeking the change; and, in each instance the court must also find that the requested modification is in the best interest of the child.
Child custody litigation is often the most painful aspect of family law practice. It can be devastating to not only the parents but also the children of the marriage. It can result in the most costly litigation faced by parents and it can be a brutal emotional experience for all involved. At one time, parties were left with no alternative but to litigate these emotionally devastating and expensive suits in order to obtain a resolution, but today many courts favor the use of mediation before resorting to a trial and, in many instances, even before a temporary orders hearing occurs, in the hope of sparing both parents and their children the lasting scars which child custody litigation may have on everyone involved. While the use of mediation does not always result in a settlement between the parties, mediation can result in agreements regarding children which are not only in the best interests of the children, but have also fostered long-term cooperation between parents who might otherwise find themselves in a state of perpetual litigation.
The Wishes of the Child:
In a case tried to the court (without a jury), the judge may interview a child who is 12 years of age or older about the child’s preference as to whom the child would prefer to have as the conservator who has the exclusive right to designate the child’s primary residence in a custody proceeding. While the child’s preferences are a factor the court may take into consideration, that preference does not prevent the court from making a decision which is contrary to the wishes of the child. The child’s preference does not control the outcome of the case. The judge always retains the right to make decisions which judge believes are in the best interest of the child.
Texas law also permits a jury to make a binding decision on the issue of child custody and if a jury trial occurs, the judge does not interview the child because the judge is not the trier of fact.
Possession and Visitation:
The Texas Family Code authorizes the use of the Standard Possession Order of visitation in cases where the child is three years of age and older. Although labeled as the Standard Possession Order, the Family Code permits the parents to enter into an agreement which varies from the Standard Possession Order and, indeed, the Family Code requires the Court to craft an order of possession or access to the child for a parent whose work schedule makes the application of the Standard Possession Order impossible or unworkable.
For a child less than three years of age, the Family Code confers upon the trial judge discretion to determine the amount of access and possession to the child by the non-custodial parent. There are multiple factors which the Court takes into consideration in determining the frequency of contact between a child less than three years of age and its noncustodial parent.