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Protecting What Matters Most
Protecting What Matters Most
A custody case can be as confusing for a parent as it is for the child. In helping Texas families sort out the best arrangement for their kids, we’re often asked questions both basic and detailed. Below are some of those frequently asked questions. To book an initial consultation, contact Evans Family Law Group in Austin today.
Parents of a child always can sue for custody of their child. In some cases, people who have served in a parental capacity also have legal standing to file a custody suit, if they have had care, control, and possession of the child for at least six months. That group of people may include grandparents, aunts and uncles, family friends, unmarried domestic partners, and step-parents. The relevant case, decided by the Texas Supreme Court on June 15, 2018, was In the Interest of H.S., a Minor Child.
Physical custody gives the parent the right to determine where the child lives. Legal custody gives parents the right to make legal, medical, and educational decisions for the child.
When the court awards joint custody it will name a Primary Conservator (usually the person the child spends the most time living with, and who has physical custody) and a Possessing Conservator (usually the one who pays child support, and who has a right to spend time with the child). Both conservators will work out a co-parenting schedule (also known as visitation).
The court will name both parents “Joint Managing Conservators.” A Managing Conservator has legal custody of the child. A joint conservatorship means both parents have the right to make legal, medical, and educational decisions for the child. Each parent is expected to work with the other parent to reach a consensus on those decisions.
Visitation, or, as Texas calls it, “possession,” can be a contentious and misunderstood part of the divorce process. Unrealistic expectations abound, and it’s easy for either parent to get confused. A better understanding of visitation will help you during and after the divorce. It may help you offer or recognize a workable visitation settlement. It may also help you avoid legal pitfalls that can spring up after the divorce order is signed.
The Texas Family Code states that absent any safety concerns, both parents should receive “frequent and continuing” time with their children. The State offers a Standard Visitation Schedule, which the court typically uses as its guideline when parents can’t agree. The way the agreement is structured depends on how close the parents live to each other. For example, if you live less than 100 miles apart the non-possessing conservator can expect four weekends a month by default, with a caveat that the possessing conservator may request one weekend in a month with written notice. If you live more than 100 miles away you may only get one weekend a month, but you may get over a month of extended summer visitation. Holidays usually alternate in both cases, as do birthdays.
Yes. One is that on many occasions one parent will need to give the other parent notice to claim visitation time or to make modifications to it. Regardless of who has possession on the child’s birthday that year, the other parent may always spend at least a couple of hours with that child on his or her birthday. Be sure to read your court-ordered visitation schedule and refer to it often, so that you are aware of any other rules or regulations that might affect your parenting time.
No. For better or for worse, those are two separate legal issues. If your ex is not paying child support you need to ask the court to enforce that order. But if you’re not cooperating with visitation the court can enforce court orders on you to do so.
No. If you and your spouse can agree on a fair and reasonable schedule that’s within the best interests of the child you can structure it in any way that makes sense for your family. You should still consult the standard. It will offer a guideline for determining a reasonable amount of time for each parent to spend with the child.
James W. Evans is a board-certified family law attorney and the founder of Evans Family Law Group. With over 25 years of experience, he has built a reputation as a trusted advocate for Texas families navigating divorce, custody, and complex family law matters.
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Only if you can prove the other parent is incapable of interacting with the child safely. That’s the only way “zero visitation” would ever be under consideration. Even then, the court is far more likely to award supervised visitation.
You may not want your ex hovering over you and your child, but not to worry: Your ex won’t be the one supervising. Rather, a supervised visitation specialist will watch over you and your child. You can find one in the Access and Visitation Directory maintained by the Texas Attorney General’s office. This professional is trained in how they ensure the child is kept safe without interfering with your ability to foster an appropriate relationship with that child.
Not unless neither parent is incapable of interacting with the child safely. Barring special circumstances, the court assumes the child’s parents will make decisions about whether and when grandparents will be included in his or her life. Click here for more information about grandparents’ rights.
Sole custody means one party is the only Managing Conservator, in addition to serving as the Primary Conservator. It does not necessarily mean the other parent will not be given the ability to act as a Possessing Conservator.
An emergency temporary child custody order (also known as an ex parte custody order) would be issued only when there is a clear and present danger to the child. Unless one is issued the parents have the right to determine where the child lives. A parent’s acting as though he or she has sole custody and actively attempting to keep the child from the other parent can weaken his or her case later if there are no grounds for emergency child custody orders or protective orders.
You are not required to go to court. You and your ex may reach an amicable agreement that serves the best interests of your child, and can settle out of court. In most cases that is ideal, because the two people who are most intimately familiar with the children and with the family’s situation can craft an arrangement that works for them.
You’ll only go in front of a judge if you can’t reach a consensus. At that point, a perfect stranger (albeit one with judgment and experience) will be doing his or her best to decide what’s right for your child.
Focus less on how the other parent is a “bad parent,” and focus more on what you offer. Focus on what you have done to care for your child. Have you gone to medical appointments? Do you attend school events? Do you read to the child at night? Those are examples of things that you can and probably should bring to the judge’s attention.
Not in our experience. Judges are more inclined to grant Primary Conservatorship to the parent who has been the “primary caretaker.” That refers to the parent who routinely gets up and takes the kids to school, gets them dressed and cleaned, feeds them, manages their events, brings them to their medical appointments, helps with their homework, meets with their teachers, and so on.
Often, but not always, that person is the mother. When it is the father, the father will have the stronger case for becoming the Primary Conservator.
As long as neither parent is “unfit,” Texas courts prefer to foster a relationship between both parents and their child, even if the parents aren’t married. The court may be inclined to set up a co-parenting schedule and to send both parents to parenting classes, to ensure both parents have the skills to deal with their child, and confidence in one another’s ability to do so.
The legal definition is a parent who would significantly impair the child’s physical health or emotional development. Of course, the reasons for that can vary. A drug or alcohol problem may render a parent unfit, as can a severe mental illness, or an established pattern of abuse or neglect.
It depends on how well you and your lawyers handle the allegations. If you are the accused you will want to focus on rebutting or disproving those claims. There may be an investigation. It’s in your best interests to cooperate.
If you’re the accuser, you need to provide the courts with proper documentation, and you need to focus on the relevant aspects of the problem to ensure the judge takes you seriously. You will need to share with your attorney any photographs, medical records, or police reports that help establish a pattern of abuse. Many people allege abuse to get a “leg up” in court. In the absence of any evidence those claims may be dismissed, and your effort may backfire.
Contact Evans Family Law Group in Austin today to discuss your family’s unique situation.
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I had a great experience working with Jimmy Evans on my divorce case. He provided excellent counsel and always focused on getting me the best results. He was accommodating and made sure I understood each step of the process. His paralegal, Dina, was also wonderful! She kept communication clear and timely, and I could always count on her for quick updates and answers. The firm as a whole was efficient, professional, and supportive, which made a difficult process much easier to navigate. I highly recommend Jimmy Evans and his team.
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Evans Family Law has been wonderful to work with. I am grateful that I found them and hired them for my legal needs!
He took the time to talk to me and answer questions. I would recommend Jimmy to anyone seeking help with their legal needs.
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I had a great experience with Evans Family Law Group! Their legal team took time to clearly answer my questions and make sure I knew what was going on with my case. They were super easy to work with and knew exactly how to handle all the various obstacles that popped up over the course of my divorce. I am very happy I worked with them and would absolutely recommend them to anyone else!
The Evans Family Law Group was patient with me, protected my interests, and kept me inline. They responded in a timely fashion and provided updates with each step along the divorce process. Their forethought in decree language saved me.
Evans Family Law Group was the first business that didn’t quote me an outrageous number while also telling me that I may need to pay more later. Jimmy gave me a flat rate that was significantly lower than the multiple other firms I called prior. He was also very quick with communication and even sent a description of every form he sent so I would understand the whole process better. Dina was also incredible as she as she was able to notarize the forms remotely and kept me updated through every step of the process. To my surprise, Jimmy and Dina were able to make this process so smooth and simple and I cannot be more grateful. Thank you both very much!
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I had a great experience working with James Evans. He was extremely responsive, easy to work with, and able to meet my tight timeline without sacrificing quality. I appreciated his clear communication and attention to detail throughout the process.
I would like to take this opportunity to thank the Evans Family Law firm for working with me on my extended divorce process. Giving special attention to Ms. Caitlin McGregor. Always the consummate professional. I truly felt well represented with not only her knowledge of family law but she took time to be sure I felt heard. She always kept me well informed, which helped tremendously with the anxiety that came along with the seemingly endless divorce.
She showed real concern which kept me on a positive note in what has been a very dark time for me and proved to be a great negotiator on my behalf. Not to forget she was also working with an awesome team of paralegals and professionals. Thank you all for your hard work and persistence in this case.
I had a great experience working with Jimmy Evans on my divorce case. He provided excellent counsel and always focused on getting me the best results. He was accommodating and made sure I understood each step of the process. His paralegal, Dina, was also wonderful! She kept communication clear and timely, and I could always count on her for quick updates and answers.
I have had an excellent experience with the staff of Evans Family Law. They have all been very friendly and efficient with my case, and have always been honest and accountable in all situations. I would employ them again for any family law needs I may have. I’m very pleased with their work.
Jimmy has an encyclopedic knowledge of the law, extensive experience with a wide range of cases, and as a result is someone I could completely trust to know what he was doing. He was always willing to explain why certain issues that were under dispute were/were not likely to be upheld by a judge and gave me a very honest sense of what to expect before a judge, with respect to anything I asked him.
He took the time to talk to me and answer questions, and was an ethical advocate who was clearly seeking the best outcome for the children. Rarely do I post reviews, but I chose him based on ones I read by people equally unfamiliar and scared by family law, divorce, and custody as I was; and he was a gem in guiding us through a difficult time. I’m so grateful to have found him, and recommend him as one of the most ethical and professional people I’ve ever worked with.
This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by Attorney James Evans, who has more than 20 years of legal experience as a family law attorney.
At Evans Family Law Group, we combine our in-depth knowledge, strategic approach, and commitment to you to achieve optimal results.
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