Child Custody – The Details

Divorces involving children can be extremely emotional and often very expensive. At some point you or your spouse will be told that you no longer have the right to see your children any time you want to see them. That is scary.

That’s why it is important to understand how child custody issues are resolved in a divorce.

The “Best Interests of the Child” Standard

When a court rules on the issue of child custody, it must do so based on the best interests of the child. Texas law provides that:


The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

Texas Family Code Section 153.002

The Process of Deciding Child Custody Issues

Most divorce cases will settle well before trial. This means that a judge does not make the custody determination – the parties make that decision by agreement.

A judge still has to sign off on the agreement and will evaluate the agreement under the best interests of the child standard.

When the divorce is relatively amicable, the parties will often reach an agreement on custody informally through negotiation or at an informal settlement conference.

Other times, the parties may need the help of a third party. In those cases, the parties will sit down with a mediator.

The role of the mediator is to give each party feedback on how the mediator thinks a judge might rule and facilitate efforts for the parties to reach an agreement.

If the parties reach an agreement at mediation, then the mediator will reduce that agreement to writing and file it with the court. The judge will then review the agreement under the best interests of the children standard.

The Parenting Plan

If the parties do reach an agreement, then their attorneys will draft a parenting plan. A parenting plan address all of the issues involved in a child custody determination and is optimized to develop a close and continuing relationship between the children and each parent.

The parenting plan (incorporated in the final divorce decree) will include the following terms:

  1. Which parent will determine the primary residence of the children.
  2. Which parent will make decisions regarding the children education.
  3. Which parent may make decisions regarding medical care for the children.
  4. Which parent will make decisions regarding the religious upbringing of the children.
  5. Set out all other rights and duties of the parents.
  6. The periods of possession and access to the children that each parent will have.
  7. Whether custody will be based on the Standard Possession Order or a modified possession order.
  8. Any other special provisions the parents agree on for raising the children.
  9. Provisions for child support including medical and dental insurance.

The parenting plan will be subject to approval by the court under the best interests of the child standard.

If the parents do not reach an agreement on custody, then the judge will decide that issue at trial and the rest of this discussion focuses on that scenario.

The Standard Possession Order

Texas law provides a Standard Possession Order and further provides that the Standard Possession Order is presumed to be in the best interests of the children.

The SPO is the custody arrangement that most clients are familiar with – one parent has primary custody of the child and the other parent has visitation rights on the 1st, 3rd, and 5th weekend of the month as well as Thursday evenings. The parents split or alternate most holidays with extended visitation for a period during the summer.

There are slightly different rules under the SPO if the parents reside more than 100 miles apart.

You can read more detail about the Standard Possession Order in this article.

Factors That Would Cause A Judge to Deviate From the Standard Possession Order

Certain factors will cause or require the court to deviate from the Standard Possession Order. Those factors include:

  1. If there is a  history of domestic violence or sexual abuse in the family.
  2. If there is a history of neglect or abandonment.
  3. If the work schedule or other special circumstances of the custodial parent, noncustodial parent, or the child make the standard possession order unworkable or inappropriate.

If the court issues an order that deviates from the SPO, then the court must make written findings stating the reasons it has deviated.

Factors a Court Will Consider In Deciding Primary Custody

There are no limits to the facts and issues a court can consider when deciding which parent should have primary custody under the Standard Possession Order.

Examples of common factors the court will consider include:

  1. Relative stability of each parent’s residence.
  2. Relative location of each residence to the children’s school.
  3. Ability to get children to and from school.
  4. Work schedules of the parents.
  5. Ability to get children to and from extracurricular activities.
  6. Support and plans each parent has available to support the children’s growth and nurturing.
  7. The behavior of each parent in the past and during the divorce proceedings.
  8. The past involvement of each parent in the children’s lives and daily activities.

Ultimately, the court will make the decision based on what the court finds to be in the best interests of the children.

Potential Witnesses On Child Custody Issues

Much like the factors a court will consider, the potential witnesses a party might use in seeking primary custody is unlimited.

Common witnesses include:

  1. Family members
  2. Social Workers
  3. Teachers
  4. Day Care Providers
  5. Psychologists
  6. Doctors
  7. Ministers
  8. Neighbors
  9. Parents of the children’s friends

Obviously, a parent would want to use witnesses that have been around the parent and the children both frequently and recently.

Testimony From The Children

One of the most common misunderstandings of child custody is that children over 12 can “choose” which parent they want to live with.

That is not true.

What is true is that you can ask the court to interview children over the age of 12 and consider their wishes in making a custody determination. However, the court is not bound by the children’s desires.

Special Rules For Children Under 3

There are special considerations and rules when it comes to children under the age of 3.

The law recognizes that younger children benefit from stability and consistency in their environment during the their first few years of life.

This means that the Standard Possession Order does not apply to children under the age of 3.

The other parent still has rights of visitation with a younger child.

The court will still allow visitation to the other parent on a differing schedule.

Supervised Visitation

Under certain circumstances, the court may order that visitation of a child be done under the supervision of the primary parent or another individual.

Supervised visitation will only be ordered if the court finds that unsupervised visitation is not in the best interests of the children or that unsupervised visitation would endanger the physical or emotional welfare of the children.

Payment of Child Support Is Irrelevant

Whether a parent is required to pay child support or is current in paying child support is a separate issue from custody.

This means that even if your spouse is behind on child support payments, their right to custody of the children cannot be denied based on that failure to pay child support.

Temporary Orders on Child Custody

In hotly contested divorces, the parents may not be able to agree on child custody even for a short time during the divorce itself.

In that case, one party (or both) will petition the court to issue temporary orders at a temporary orders hearing.

The temporary orders hearing is similar to a mini-trial conducted early in the process during which the court will issue rulings on any number of issues including child custody.

The court’s decision at that temporary orders hearing will be aimed at preserving each parent’s rights and the status quo until a final hearing determines child custody or the parents come to an agreement.

The same factors and criteria discussed above will guide the court in making a temporary decision on child custody.

Modification Of Custody Orders

A court order on child custody may be modified in a subsequent proceeding.

In order to establish that a modification should occur, the parent seeking modification will have to show the court that modification would be in the best interests of the children and that the circumstances of the child, a parent, or a party have materially and substantially changed since the date of the prior order.

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