Child Custody Texas

Parenting Plan

In 2005, the Texas state legislature passed into law a requirement for parenting plans. This requirement seeks to protect children from the stresses of family law litigation with Houston divorce lawyers by helping parents resolve their current and future parenting and by encouraging parents to participate in and to share the rights and duties of raising their child after the divorce.

A parenting plan is a temporary or final Houston divorce lawyer-assisted court order that sets out the rights and duties of parents in a suit affecting the parent-child relationship. It includes Houston divorce lawyer guided provisions relating to conservatorship, possession of and access to a child, and child support, and a dispute resolution process to minimize future disputes. Parenting plans do not apply to Attorney General cases. The parents must agree in the plan to resolve any future disputes through methods such as mediation or arbitration before instructing a Houston divorce lawyer to file a lawsuit, except in an emergency.

A Houston divorce lawyer who helps develop the plan must also, at a minimum:

• Establish the rights and duties of each parent with respect to the child;
• Minimize the child's exposure to harmful parental conflict;
• Provide for the child's changing needs as the child grows and matures in a way that minimizes the need for further modifications to the final parenting plan;
• Provide for a dispute resolution process or other voluntary dispute resolution procedures before court action, barring family violence.

Parenting plans are not required in Temporary Orders. Many Houston divorce lawyers simply state in the final decree, "The following constitutes a parenting plan," where the decree addresses the rights and duties of the parents and do nothing more in regard to the parenting plan requirements. The court can always require the parties and Houston divorce lawyers to submit a revised parenting plan.

Paternity

If a client says that he does not believe he is the father of a child born during the marriage, a Houston divorce lawyer should not enter a final decree with a contrary finding until there has been paternity testing, or that Houston divorce lawyer will be foreclosed from disputing it later. More than 30 percent of men who participate in a DNA paternity test discover they are not the tested child's biological father.

Possession and Access

Possession and access to children is covered in Chapter 153 of the Family Code. The Standard Possession Order is located in Subchapter F of that Chapter. There is a presumption that the parents should be appointed joint managing conservators. A child of twelve (12) years of age or older may file with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child, subject to the approval of the court.

Often the child will sign such a document at the law office and guided by the Houston divorce lawyer of one parent, and then sign a similar document at the urging of the other parent's Houston divorce lawyer. The court may interview the child in chambers to determine the child's preference. A Houston divorce lawyer should be sure that the client understands all that is entailed in a custody battle.

The client should evaluate the reasons for the fight and determine if it really is in the best interest of the child. For children under three years of age, the court must render an order appropriate for possession of the child, and render a prospective order to take effect on the child's third birthday, which will presumptively be the standard possession order.

Parental Alienation

During a divorce, the custodial parent will often engage in a campaign of degrading the other parent: speaking ill of the other parent and taking actions that cause the child to think ill of the other parent. This is referred to by psychiatrists as "parental alienation" and is very destructive psychologically to children. Houston divorce lawyer assisted mediation in the early stages of a divorce matter can greatly alleviate this problem and provide the parents with the tools necessary to evaluate the situation and put the best interest of the child or children first. There is a plethora of literature in the area of parental alienation. A good starting point, and a very well-written book on the subject, is Divorce Poison by Dr. Richard A. Warshak. A Houston divorce lawyer may recommend this book to parents who are suffering from the effects of parental alienation. Frequently, a lot of damage has already been done before a parent seeks legal advice from a Houston divorce lawyer. If this is so, that Houston divorce lawyer should consider sending a letter to the offending parent.

Such a letter from a Houston divorce lawyer documenting behavior:

• May cause the parent to realize the destructive nature of his or her actions;
• Will alleviate the burden on the non-offending parent;
• Will document the offending behavior for future modification, if necessary.

The Non-Custodial Parent's Visitation

It is the moral duty of the Houston divorce lawyer, regardless of which party the Houston divorce lawyer represents, to look out for the best interest of the child. If a custodial parent is being unreasonable about visitation, the Houston divorce lawyer should explain the importance of having both parents involved in the child's life. Children suffer from separation anxiety when separated from either parent. The Standard Possession Order is meant to constitute a minimal schedule rather than an average schedule. If a judge orders less than the Standard Possession Order, the judge shall upon timely request, state in the order the specific reasons for all deviations from the Standard Possession Order.

The Standard Possession Order provides as follows:

Waking Hours:

Residential Parent: 1,982 hours (57%).
Non-residential parent: 1,480 hours (43%).
Difference equals 502 hours.

Overnights:
Residential Parent: 223 nights (61%).
Non-residential Parent: 142 nights (39%).

Extended periods of visitation and overnight visits help enrich the attachment between child and parent. In a 1992 study of 1100 divorced families, 98.4% of fathers who had overnight visitation with their children under age three still maintained contact with the child at the follow-up three years later. On the other hand, 56% of fathers who did not have overnights lost contact or significantly decreased contact by the three year follow-up.

Father absence is associated with:

• Non-payment of child support;
• Poor quality of the relationship with both parents;
• Higher rates of substance abuse, school drop-out, juvenile delinquency and debauchery;
• Language development delay.

Father involvement is associated with:

• Positive peer interaction;
• Greater levels of affection;
• Overall psychological well-being.
• Interference With Custody or Visitation

Interference with child custody is a criminal offense:

(a) A person commits an offense if the person takes or retains a child younger than 18 years when the person: (1) knows that the person's taking or retention violates the express terms of a judgment or order of a court disposing of the child's custody; or (2) has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child's custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child.

(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.

(c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense.

(d) An offense under this section is a state jail felony.

There is very little case law on this subject, but one court attempted to set some guidelines for Houston divorce lawyers. In one case the court ruled that a mother was not in contempt where she passively failed to insist that her children visit their father, but did not seek to impede the visitation or encourage the children to resist it. The court stated that if "a parent has encouraged minor children to resist court ordered visitation with the other parent, the line has been crossed between passivity, which is not punishable by contempt, and overt conduct, which would be punishable. Again, the well-being of the children is served by both parents' encouragement to the children to love and respect the other parent."

Within the spectrum of visitation disputes, a Houston divorce lawyer may find instances in which a parent:

1. Actively discourages or impedes visitation.
2. Passively fails to insist that a child comply with visitation.
3. Is legitimately unable to compel a child to comply with visitation.

The defense of involuntary inability to comply applies only to the third alternative, and not the first two.

While there is no requirement that the custodial parent drag the child to the non-custodial parent's vehicle, the custodial parent should do everything to encourage the visitation within reason. If a Houston divorce lawyer represents a custodial parent who does not want visitation to take place, send a letter describing the law and encouraging the client to cooperate in encouraging visitation. On the other hand, if a Houston divorce lawyer represents a non-custodial parent and the custodial parent refuses to allow visitation, consider sending a letter to the custodial parent encouraging cooperation. Note that the form letter provided here has increasingly more severe language attached to the end than an individual Houston divorce lawyer might consider, depending on the facts of the particular case.

Uniform Child Custody Long Arm Statute

In child custody cases, Texas courts have jurisdiction to make an initial custody determination regardless of Houston divorce lawyer input only if:

1. The child's home state is Texas on the date of filing, or was the child's home state within 6 months of filing and a parent continues to live in Texas;
2. The child has no other home state, the child and at least one parent has significant connection with Texas, and substantial evidence concerning the child's care exists in Texas; or,
3. No other court would have jurisdiction under the above criteria.

Physical presence of, or personal jurisdiction over a party or a child is neither necessary nor sufficient to make a child custody determination. The court that makes the initial determination normally retains exclusive jurisdiction to modify it unless one of the following takes place:

• The parents and child move out of state
• Temporary emergency matters arise
• Intervention by Grandparents or Others

There is a distinction between a Houston divorce lawyer bringing an original suit and intervening in an existing suit. Only certain persons and entities may file an original suit affecting parent-child relationship (SAPCR). However, in suits affecting the parent-child relationship two types of parties may intervene in SAPCR actions and are not required to have standing sufficient to institute a parent-child suit in their own right:

1. Grandparents
2. Persons deemed by the court to have had substantial past contact with the child.

Grandparents have a heavier burden and may choose to be represented by a Houston divorce lawyer. The custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. The state's interest in protecting the children does not outweigh a fit parent's interest in the care, custody, and control of their children as represented by a Houston divorce lawyer.