Child Custody

Although this is not a term in the Family Code, it is a common term for the person who is the primary custodian of the child(ren). The primary parent is determined by the parent who has the right to determine the domicile of the child(ren) - usually within a specific geographic area. Aside from being very costly, custody fights are hard on the child(ren), and it is difficult to keep the child out of the middle. Custody fights also make future co-parenting very difficult for the parents, which also negatively impacts the child(ren).

It is important for parents to explore all options to try to find a middle ground. For example, the child’s domicile could be restricted to a smaller geographic area, such as a school district, with neither parent having the exclusive right to determine the domicile within the specified areas.  Another option is to find a schedule that is closer to a 50/50 possession schedule that both parents and the child(ren) can live with. A Standard Possession Order is generally a 60/40 division. With some minor modifications to the Standard Possession Order (such as adding two Wednesdays per month for the non-custodial parent), the possession is generally a 55/45 division.  Another alternative to the Standard Possession Order is awarding one parent Monday and Tuesday, the other Wednesday and Thursday, and alternating weekends. This possession schedule is known as a 2-2-5-5 and is a 50/50 division.  For children who are a little older, a week-on, week-off possession may work well. These alternate possession schedules can help parents come to an agreement for possession and access to the child(ren) without a trial; however, in the event of a trial, the judge will usually award a Standard Possession Order to one of the parents. On some occasions, one parent may be awarded less than a Standard Possession Order.

Unfortunately, not all custody cases can be resolved out of court. In the event these cases are taken to trial, the court will review many factors to determine the best interest of the child.

Many people have the mistaken belief that a child can choose which parent he or she wants to live with at age twelve. The Texas Family Code states that in a custody case with a child 12 years of age or older, the judge shall interview the child in chambers at the request of either party or the judge can decide on his or her own. If the child is younger than 12, the judge may interview the child. It is important to understand that the child's choice is one factor among many that the judge will consider. The older or more mature the child is, the more weight the child's choice will weigh. Also, if the child gives sound reasoning for the decision, the judge will give the child more credibility. In some cases, the judge may determine that what the child wants goes against the best interest of the child. In other cases, the child may speak in adult language, or legal terms, and it may be apparent the judge that one of the parents has bribed, coerced, or otherwise enticed the child to make a particular choice. The judge may also determine that parental alienation is present. The parents are not present in the chambers with the child and the judge, and the attorneys are rarely present. At the end of the trial, it will not be made known to the parents what the child said - only the judge's decision on which parent will have the right to determine the domicile of the child(ren), what possession and access the other parent will have, and which parent will pay child support