Your Questions about Child Custody Answered

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Child custody cases are some of the most challenging family law concerns. Because child custody directly affects when your children are with you, there is a lot at stake, and you no doubt have questions. One of the most important steps to take if you are facing a child custody concern is obtaining the skilled legal representation of an experienced child custody lawyer in Austin early in the process.

Child Custody in Texas: The Basics

Texas breaks child custody down into two basic categories: legal custody and physical custody. Better understanding these terms can help you better understand the legal intricacies of your case.

Legal Custody

As a parent, you’re called upon to make a wide range of important decisions on behalf of your children. These range from the mundane, such as what’s on the menu for lunch, to the profound, such as which medical care your children should receive. Legal custody determines decision-making authority for major parenting decisions like the following:

  • Where your children make their primary home

  • The medical care your children receive

  • Where your children attend school or daycare

  • The religious upbringing your children receive

  • The travel your children engage in and the extracurricular activities in which they participate

When parents share joint legal custody, they continue making these important decisions together, but other arrangements are available:

  • One parent can have the authority to break a tie in those instances in which you’re unable to reach an agreement despite your best efforts.

  • You may divide the decisions between you according to topic – for example, one of you may cover decisions about medical care and extracurriculars while the other takes on education and religious upbringing.

In the event of an emergency, the available parent is called upon to make the required decisions, and when it comes to day-to-day decisions, the parent who is responsible for the children at the time is responsible for making them.

Physical Custody

Physical custody addresses the parenting time schedule that determines when your children are with you and when they’re with their other parent. In Texas, one parent may become the primary custodial parent, which involves having the children for the majority of overnights, but parents can also share their overnights with their children more equally.

Texas courts are bound by the best interests of the children involved, and – barring a serious reason for ruling otherwise – this generally translates to maximizing the amount of time each parent is afforded with the children.

The following factors guide the child custody decisions made by Texas courts:

  • The preferences of each parent

  • The preferences of the children who are considered mature enough to voice their reasonable opinions

  • The children’s ages and overall mental and physical health

  • The overall mental and physical health of the parents

  • The children’s needs, including any special medical, educational, or emotional needs

  • Each parent’s ability and inclination to meet each child’s needs

  • Each parent’s commitment to engaging in effective co-parenting, which is considered in the children’s best interests

  • Each parent’s commitment to supporting the other’s close relationship with the children

  • The distance that the parents live from one another

  • How well the children have adjusted to the status quo, including in terms of their primary home, their school, and their community

What Are an Unmarried Parent’s Rights?

In Texas, mothers are automatically awarded full legal and physical custody rights over any children who are born to them. This determination is true whether they are married or not. If the mother is married, her husband at the time of the child’s birth is considered the legal father, and he is afforded full legal and physical custody rights.

However, if the mother is not married at the time of a child’s birth, her parental rights are secured, but the father must establish paternity before he is afforded legal rights.

If the mother and the father agree on the matter of paternity, it can be established legally by filing an Acknowledgement of Paternity form. Otherwise, paternity must be legally determined, which the mother, the potential father, or the court can instigate.

Once paternity is established, the parents can either resolve the matters of child custody and child support between themselves, or these issues can be determined by the court. When parents aren’t married, identifying parental rights is more complicated, but once paternity is established, the father has the right to pursue a parenting time schedule.

A seasoned Austin paternity lawyer can help you file for paternity and get visitation rights for your children.

Can an Unmarried Father Take a Child from a Mother?

If an unmarried father establishes his paternity, he can seek parenting time with the court. Physical custody determinations are made in relation to the involved children’s best interests, and if living with the father primarily supports this objective, the court can rule in the father’s favor.

However, it’s important to note that the court will take the status quo into careful consideration. As such, if the children are doing well in their mother’s care, the court would have no reason to rip them from this loving environment. The father would be far more likely to obtain parenting time that allows him to see his children on a regular basis.

Only if the mother is deemed unfit in some capacity would a Texas court allow the father to take a child from his or her mother. Ultimately, courts want what is best for children, which generally involves spending time with both parents.

What Makes a Mother Unfit?

The qualities that make a mother unfit are the same qualities that make a father unfit, and they include all the following characteristics:

  • A parent who is unable or unwilling to provide the child with adequate care

  • A parent who neglects the child

  • A parent who abuses the child physically, medically, emotionally, or sexually

  • A parent who has a negative impact on the child’s life

  • A parent who engages in felonious behavior

  • A parent who engages in active parental alienation of the other parent

  • A parent whose addiction interferes with his or her ability to provide the child with adequate care

  • A parent who engages in activities that put the child at risk

The matter of how to prove that a parent is unfit ultimately comes down to the court. Only the court can declare a parent unfit, and it is a high legal bar. Just because your child’s other parent doesn’t have the same parenting philosophy that you do or doesn’t make the same parenting decisions that you would doesn’t make him or her unfit. However, a parent who engages in a pattern of practices that consistently threaten a child’s health or safety may be found unfit.

Every case is considered in relation to the unique circumstances involved. Sometimes, unfit parents lose all their parental rights, but in other circumstances, they receive limited visitation, which may need to be supervised. To learn more about how these factors may impact your visitation, contact a seasoned Austin child custody lawyer.

If you are concerned about how to take a child from an unfit mother, it’s important to know that you should act quickly. If you are concerned about your children’s well-being, the matter is too important to take any chances. The best path forward involves seeking the trusted legal guidance of a well-established child custody attorney as soon as you recognize that there’s an issue.

Do Unmarried Fathers Have Rights in Texas?

Once an unmarried father establishes paternity of a child, he can pursue his parental rights through the court. While married fathers automatically receive full physical and legal rights, a father who is not married to his child’s mother can face challenges. Working closely with a dedicated Austin child custody lawyer is always well advised.

What Does It Mean to Be a Possessory Conservator?

If you have dug into child custody in Texas a bit, you’ve very likely come across the confusing term “possessory conservator.” Possessory conservator refers to a parent who is afforded parenting time but may not have any legal custody rights, which are decision-making rights.

When one parent is identified as the sole managing conservator, he or she has sole legal custody and makes all the big-picture parenting decisions on behalf of the children, while the other parent is identified as the possessory conservator.

What Kind of Parenting Time Schedule Will I Receive?

Parenting time schedules come in many different varieties, and the circumstances involved guide the results. Texas courts have a range of set parenting time schedules that they commonly turn to, and a range of variables play a role.

Child Custody Schedules by Age

Texas courts recognize that children’s needs change as they age, and they have parenting time schedules that reflect this important fact.

Children who are under the age of three are considered to be of a “tender age,” which means that they require more care and that extended stays with the parent who isn’t in the primary custodial position may not be in their best interests. As such, the parent with the visitation schedule can expect consistent but shorter visits with the young child. However, this tender age doctrine does not affect decision-making authority.

While custody arrangements for toddlers are often lopsided, arrangements for children who have reached the age of three tend to afford the noncustodial parent more generous visitation.

50/50 Child Custody Schedules

When parents share physical custody equally, there are a range of 50/50 parenting time schedules to choose from. Examples of 50/50 custody schedules include the following arrangements:

  • One parent has the kids for a week, and the other parent has them the next week. A week can be a long time to go without seeing one parent or the other, and some families get around this by building in an evening of visitation with the off-duty parent during the week.

  • The 2-2-3 schedule is another common option. This schedule involves two days with parent one, two days with parent two, and the weekend back with parent one. The next week, the schedule repeats itself but begins with parent two having two days of visitation, which allows the parents to have the children for alternating weekends.

  • Another 50/50 schedule is the 2-2-5-5, which involves parent one having two days with the kids, parent two having two days with the kids, parent one having five days with the kids, and then parent two having five days with the kids. At this point, the two-week schedule begins again.

Each of these ensures a 50/50 custody schedule with alternating weekends.

Summer Visitation Schedule Examples

Even the most carefully created child custody schedule can fall apart during summer vacation. As such, it’s important to carefully consider how you’ll address your children’s summer break.

You don’t have to consider your children’s school schedules during the summer, which can free things up. However, the fact that your children are home all day may mean that one parent is better equipped to have the children in the summer – such as a parent who has a more flexible work schedule or who only works part-time.

When one parent has a more limited parenting time schedule during the school year, the tables can be turned during the summer. For example, if you only have your children every other weekend when school is in session, your children’s other parent could adopt your schedule during summer break – while you take on the other half of the schedule.

Another option is for each of you to have the children for two weeks at a time during summer break, which can be an excellent choice for older children. Some parents also choose to keep the same schedule during the summer, but each carves out specific dates for a vacation with the kids.

Consult with an Experienced Austin Child Custody Attorney Today

Brett Pritchard at The Law Office of Brett H. Pritchard – a well-established child custody law firm in Austin – is an accomplished child custody attorney who is committed to fiercely advocating for your parental rights. Learn more by contacting us online or calling us at (254) 781-4222 to schedule your FREE consultation today.

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