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Who gets to keep the kids while the divorce is pending in Texas?

When going through a divorce when children are involved, the biggest questions are almost always about the kids. The kids’ best interests are the focus of the court in every case, and should remain a priority for parents and their attorneys.

So who gets to keep them while the divorce is pending?

That depends on the situation. When the parents separated, many factors are considered by a court such as who did the kids continue to live with? Either spouse can request a Temporary Orders Hearing and ask the court to make a determination on who the children will live with.

Temporary orders are usually put in place soon after a divorce proceeding is filed, and their purpose is to dictate what happens to children of the marriage and the community estate before the divorce is finalized.

Temporary orders can either be decided by a judge at a Temporary Orders Hearing, or by the parents, their attorneys, and a mediator at mediation. Temporary Orders usually make custody orders regarding:

  1. Conservatorship
  2. Rights and duties to the child
  3. Possession and access for each parent with the child, and
  4. Child support that will remain in place during the pendency of the lawsuit.

Most courts require the parents to participate in a mediation before they will do a Temporary Orders Hearing, because courts prefer to give clients control of their lives. However, if an agreement cannot be reached at mediation, then a Temporary Orders Hearing is necessary.

The Temporary Orders Hearing is like a mini trial, both attorneys will present evidence in order to allow the judge to determine whether it is in the best interests of the kids to stay with Mom or Dad while the divorce is pending.

Mom and Dad will likely both need to testify in front of the judge, too. Usually a judge does not want to disrupt the status quo, so whoever the kids stayed with after the separation is who will keep the children, unless there is good reason to disrupt them and move them with the other parent.

Home Work for Preparing for Custody Temporary Orders

  1. List and describe all your good qualities as a parent.
  2. List and describe all your bad qualities (shortcomings) as a parent.
  3. List and describe all your spouse's good qualities as a parent.
  4. List and describe all your spouse's bad qualities (shortcomings) as a parent.
  5. Write a history of your relationship with your spouse up through the present date. Begin with your dating relationship. Emphasize any and all important events or episodes with particular reference to your children.
  6. Keep a daily journal. .You should get a calendar which has complete blank pages for each date (the 5” x 7” or 8” x 10” calendars work well). Make a point to list significant events, discussions with your spouse, visitation exchanges, etc. on the date that it actually happens.
  7. Secure photographs of you and your children participating in various activities. If the camera does not do it automatically, put the date and time on the backs of the photographs. Detail, in your opinion, why it would be in the best interest of your children for you to have primary possession of your children.
  8. If your case involves an initial custody issue provide a detailed written discussion of all the following areas regarding your and your spouse:
  • Job stability;
  • Residence stability;
  • Marital stability;
  • Psychological or emotional stability;
  • lifestyle and morality
  • Children’s preference;
  • Methods of discipline;
  • School programs;

Things to Bring to a Temporary Orders Hearing

  1. Financial Information StatementThis document summarizes expenses and income flowing in and out of the household from daycare, mortgage payments to the utilities after the net income in order to establish child support and spousal.
  2. Summary of Requested ReliefThis document summarizes what you want from the judge in a one-page, succinct manner so that there is no guesswork.
  3. Proof of IncomeW-2’s or 1099’s to demonstrate your income for the previous 2 years.
  4. Tax ReturnsIncome tax returns to confirm your taxable income for the previous 2 years.
  5. Recent Pay Stubs Give the judge a snapshot of what you are making in the 2-4 months prior to hearing;
  6. Photographs of your children/home – “A picture says a thousand words.”

What makes a person the “primary parent?”

The primary parent is awarded the exclusive right to designate the primary residence of the child. There are a number of factors the Court considers when deciding who should be given the temporary exclusive right to establish the primary residence of the child at a Temporary Orders hearing.

Assuming both parents are fit the Court is going to look at which parent has been the primary caretaker of the children. Some things a court will consider when making this determination include:

  1. Who fed your child;
  2. Who bathed your child;
  3. Who got your child ready for school;
  4. Who took your child to school or daycare;
  5. Who picked up your child from school or daycare;
  6. Who scheduled, attended and took the child to and from doctors’ appointments;
  7. Who attended school activities and parent-teacher conferences;
  8. Who participated in the child’s extracurricular activities; and
  9. Who helped with the child’s homework?
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Adobe Stock 62844981[2]If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

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Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyer

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with ar Spring, TX Divorce Lawyer right away to protect your rights.

A divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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