Updated on November 28, 2022
Whether you are facing a divorce, need a child custody modification, or are facing custody issues that are outside of marriage and divorce, you have legal concerns that require the professional legal guidance of an experienced Gatesville child custody attorney.
The answers to the nine commonly asked questions below may help you move forward with increased confidence in your ability to protect your parental rights.
One: What Is Legal Custody?
The State of Texas breaks child custody down into both legal custody and physical custody. Legal custody determines who will take on the parental responsibility of making important decisions regarding your shared children’s lives and well-being. You can handle this responsibility in any of the following ways:
You and your children’s other parent can take on this responsibility together, which means that you will make these primary parenting decisions by consensus.
One of you may be awarded tie-breaking authority for those instances when you exhaust your negotiation options and are no closer to reaching a mutually agreeable decision on the matter.
You and your children’s other parent can divide the responsibility between you according to the category of decision that is being made.
One of you can take on sole legal custody.
The kinds of parenting decisions involved in legal custody include primary matters such as the following:
Where your children attend school
The health care your children receive
The extracurriculars and travel that your children participate in
Where your children make their primary home
The religious education that your children receive
It is important to note that those workaday parenting decisions that seem to arise around the clock are the responsibility of the parent who is with the children at the time. Further, in emergency situations, the parent who is available (if only one of you is available) will need to make the relevant decisions.
Two: What Is Physical Custody?
Physical custody determines when your children are with you and when they are with their other parent. There are a few basic options when it comes to physical custody:
One parent becomes the primary custodial parent, which means that the children make this parent’s residence their primary home and have a parenting time schedule with the other parent.
Both of you split your parenting time more equally, and the children divide their time between both of your homes.
It is very rare for a parent to lose the right to visit his or her children in some form – unless there is a very significant reason for doing so. Contact a Gatesville child custody lawyer to discuss your specific case.
Three: How Does the Court Make Determinations about Physical Custody?
Physical custody is naturally a primary concern for parents who are not together, and you likely have questions about the court’s process for determining how physical custody is divided between both parents, which is generally the approach. The bottom line is that the court makes every decision that relates to the well-being of children in their best interests (based on best-interest factors), and every case is taken on a case-by-case basis.
This means that there is not a cookie-cutter approach to physical custody determinations, but the court’s presumption is that it is in every child’s best interest to spend a considerable amount of time with both parents (barring a serious reason for ruling otherwise). In other words, you and your children’s other parent are very likely to share physical custody in one way or another.
Four: Will the Court Make Our Child Custody Determinations for Us?
It is well within you and your children’s other parent’s rights to hammer out child custody terms between yourselves that you are both willing to sign off on, and the court is very likely to accept these terms. If you and your soon-to-be-ex, however, are unable to find a middle ground, your respective child custody attorneys can help you explore your best options.
You also have the opportunity to attend a form of alternative dispute resolution (ADR) – such as mediation – in which you, your children’s other parent, and your respective child custody attorney will attempt to negotiate terms with the help of a professional mediator who is a neutral third party in your case.
Only if you and your children’s other parent exhaust each of these options will you need the court to intervene on your behalf. If your goal is to avoid court, work closely with a Gatesville child custody lawyer.
Five: What Are the Best-Interest Factors Related to Child Custody?
If you and your divorcing spouse have exhausted your negotiation option and remain divided regarding your child custody terms, you will need the court to intervene on your behalf. When it comes to matters regarding children, you can expect the court to take all the following best-interest factors into consideration:
Each of your children’s preferences will be taken into consideration (if they are determined to be old enough and mature enough to do so). While your kids’ preferences will not be the deciding factor, the court will listen and factor their preferences in as it sees fit.
Each parent’s preferences will also be considered. If one parent has no interest in being the primary custodial parent due to a heavy workload, for example, the court is not likely to bestow primary custody on that parent.
Each of your children’s physical and emotional needs (now and into the future) will play a role in the decision-making process. If one parent is better prepared to address a child’s special needs, for example, the court will take this into careful consideration.
The court will consider whether either parent’s home represents either a physical or emotional danger to any of the children and will rule accordingly.
The court will also factor in each parent’s ability to fulfill his or her parental responsibilities to each of the children involved, including the role each parent’s physical and mental health plays.
The stability of each parent’s home will also be explored, and if there is a concern, it can sway the court’s decision.
Any history of domestic violence or child neglect, or abuse by either parent will be weighed in the court’s decision-making process.
The court will look at how well each of the children has adjusted to his or her current living situation, school, and community.
Each parent’s past involvement with raising the kids will be considered.
The court will take any programs that are available to assist each of the parents in terms of supporting their children’s health and overall well-being into account.
The plans each parent has regarding the children’s upbringing will also be examined.
In the end, the court has considerable discretion when it comes to child custody concerns, and as such, it can use whatever factors it considers relevant and important in making its child custody decisions.
Six: Is the Mother More Likely to Become the Primary Custodial Parent?
While the mother used to be far more likely to become the primary custodial parent in every state (as a matter of course), this is no longer the case. The State of Texas takes a gender-neutral approach to child custody determinations, which means that it does not give consideration to the parent’s gender when making child custody decisions.
If, however, a mother who is not married gives birth – and paternity is not established – she will be awarded sole custody. The determination of paternity, however, can change this.
Seven: How Is Paternity Established in Texas?
Paternity is a very legal-sounding name for fatherhood, and paternity must be established in order for the father to be awarded the rights and responsibilities of fatherhood in the eyes of the law.
The fact is that, while no child lacks a biological father, not every child has a legal father (with parental rights and responsibilities). Once paternity is established; however, it names the person identified as the child’s legal father.
Paternity in the State of Texas is established in one of three basic ways.
The Parents Are Married
When both parents are married when a child is born, paternity is presumed and established. This means that the father’s name goes on the child’s birth certificate, and he is the child’s legal father.
The Parents Are in Agreement
If both the unmarried mother and father agree that the child is the father’s child, paternity can be established voluntarily when both parents sign an Acknowledgement of Paternity. At this point, the father’s name is added to the birth certificate, and this often happens at the hospital at the time of a child’s birth.
The Court Intervenes
There is also what is known as the involuntary establishment of paternity, which refers to when a Petition to Adjudicate Parentage is filed. This is involuntary in the sense that either the mother or the father disputes the father’s paternity (making it a court issue).
If the father doesn’t appear in court at the allotted time, the court can enter what is known as a default order that declares the man the legal father (with the legal responsibilities that go along with this).
If the man does attend and both parents agree that he is the father, parenthood will be adjudicated, and the man will be added to the child’s birth certificate.
If, however, either parent continues to dispute the man’s fatherhood – or there is uncertainty involved – the court will likely order a DNA test.
Within the proceedings that determine paternity, the court can also take on the issue of child custody, visitation schedules, and child support. There is a wide range of important reasons for establishing paternity (that can benefit everyone involved), including the following benefits:
The child has the opportunity to bond with his or her father, and it is universally accepted that, barring a compelling reason for deciding otherwise, children are better off when they have enriching relationships with both parents.
The father benefits from the close father/child bond.
The child and the mother – if she is the primary custodial parent – benefit from the child custody and any other financial contributions made by the father.
The child can receive benefits that flow from the father’s employment, such as being included in his health insurance coverage and being a beneficiary on his life insurance and retirement accounts.
The child is bestowed with the state’s legal rights of inheritance.
The parents can share the rights and responsibilities of raising the child.
Paternity helps to ensure that the mother and child have a fuller understanding of the child’s medical history on the father’s side and have a fuller understanding of the child’s family history overall.
If you have more questions about establishing paternity in Texas, contact a knowledgeable Gatesville child custody attorney.
Eight: What Is Temporary Custody?
If you and your spouse are divorcing and you cannot hammer out terms for how to divide your parenting time while your divorce is pending, you may need to obtain temporary custody orders that apply only while your case is pending.
It is important to note here, however, that one of the factors that the court will take into careful consideration when it makes its final custody order is the status quo. This means that if your temporary custody orders are working well, this fact can play a role in the court’s final determination.
In other words, it is generally not a great strategy to simply accept your spouse’s request for primary temporary custody because you do not think it will affect your final child custody order (because it can). If your goal is becoming the primary custodial parent, temporary custody is an important concern that should receive your careful attention.
Nine: Who Will Pay Child Support?
Child support is a payment system that helps to ensure that both parents continue to support their children financially – in a manner that is commensurate with their ability to do so.
Child support is calculated according to state guidelines, and the primary custodial parent is generally the recipient. Even if you split your parenting time evenly, however, the parent who is the higher earner will generally pay child support.
Ten: Do I Really Need a Child Custody Attorney?
While it is your legal right to proceed with your child custody case pro se (or without legal counsel on your side), it is not advised. Your parental rights are far too important to simply hope for the best, and your dedicated Gatesville child custody attorney has the experience, legal insight, and commitment to help you craft your strongest case and to skillfully advocate for its favorable resolution.
Turn to an Experienced Gatesville Divorce Attorney for the Legal Guidance You Need
If you have child custody concerns, Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Gatesville, Texas – is a dedicated divorce attorney who is committed to skillfully advocating for the parental rights of clients like you.