Should you be asking for sole custody?

The attorneys with the Law Office of Bryan Fagan have had the privilege to be able to meet with many parents over the years for free-of-charge consultations. These consultations have resulted in our lawyers being able to gain a great deal of perspective into how parents think when it comes to issues related to child custody. When you are concerned about the future of your relationship with your child and if you have immediate grievances to address with a co-parent then a child custody case may be the path you choose to take to discuss those topics. 

A child custody case will take the rights and duties that you inherently have as a Texas parent and put them onto paper in black and white. This means that you would no longer need to wonder if your co-parent can do this or that when it comes to raising your child. The court orders for your case will determine everything from rights and duties to child support to everything in between. These court orders will function like a good budget for a family. Rather than guessing what you can do, these court orders will help guide your family better so that you can feel confident in making decisions for your child. 

Our attorneys will ask parents just like you the following question in every consultation we hold: what are your goals for this case? Think about that question for a moment. If you were to be in a position where a child custody case was filed and you and your co-parent became the parties, what would you want to accomplish with your case? This question forces you to analyze the issues and determine what is most important to you in this case. You’d be surprised how many parents wander into a family law case with no goals other than to get out of the case in one piece. 

In today’s blog post from the Law Office of Bryan Fagan, we are going to talk about sole custody of your child. This is a topic that in the minds of parents looks one way but in the outcome of a family law case can look like something different altogether. Along the way, we are going to cover the different elements of what sole custody looks like. Is sole custody a worthy goal for you and your child? Stick around to find out. 

A lot going on and a lot to decide within a family law case

Nobody is going to argue with you that raising a child is difficult. There are some good days when your little one behaves, and dinner is easy to prepare. However, much of the time you are facing circumstances where you need to put out fires left and right. Behavior issues, school issues, problems at home- the list goes on and on. Parenting can feel like a plate spinner trying to keep a dozen plates rotating on the end of a stick all at the same time. It’s inevitable that at some point one of those plates is going to fall. 

When those metaphorical plates begin to hit the ground, many parents in your position will start to consider a family law case. Whether you and your child’s co-parent are married, in a relationship, or neither, a child custody case can be an incredibly contentious situation to find yourself in. The idea that a family court judge to step in and make decisions regarding your relationship with your child is something that you may find intolerable. Still, the issue at home also is beginning to rise to the level of being something that you can no longer stomach. 

Caught between a rock and a hard place you decide to move forward with the child custody case. The sudden onslaught of a custody case, and everything that comes with it, can overwhelm you. When your mind is swirling, and you start to develop concerns over how to address these issues it is common to want to pull your child as close to you as possible- literally and figuratively. 

This is where the idea of sole custody starts to play a part in your child custody case. You may be looking at the landscape of your case and are beginning to realize that there is a distinct possibility that you could end up losing time with your child if the case goes in a certain direction. The worry that this may occur begins to eat away at you and before you know it, you have goals in the case that you never would have considered before. 

What it means to share custody versus having “full” custody

If you and your co-parent have already separated, then you are probably sharing custody in some way when it comes to your child. These aren’t court orders that you are following but they are something like that. Bearing in mind work and school schedules some parents in your shoes will seek to split custody right down the middle. Both you and your co-parent would be able to possess your children about half the time. This seems fair and balanced. You jump right into this arrangement and don’t look back. 

That is until your co-parent files a child custody case and asks for sole custody of your child. You’ve never used the term “sole custody” before, but you have heard of other people saying that they have “full custody” of their child. You’re not quite sure what this means but for a family law case, you know that you need to do whatever it takes to protect your relationship and your rights related to your child. 

The term “full custody” is not something that you will find in the Texas Family Code. It seems that this is just a phrase that has made its way into our culture because so many of us have gone through family law cases previously. When you hear the term “full custody” it likely means custody where your child will be living with you during the school week. In other words, using family law language, you will be the primary conservator of your child. 

However, when you say or hear the term “full custody” you also may be thinking about a situation where your co-parent may have their parental rights terminated. This is an extreme circumstance that does happen in the world of Texas family law. It is not uncommon to have a parent like yourself be so frustrated with their co-parent as to want that parent to have nothing to do with their child moving forward. Whether this is even a possibility is another story altogether. 

Still, other parents use the term sole custody to refer to an arrangement where you would have all of the decision-making rights concerning your child and your co-parent would have supervised visitation with him or her. This supervised visitation would either take place in your home, the home of a trusted third party, or at a supervised visitation facility. Again, even supervised visitation does not occur very often in family law circles. This usually takes place when there is a problem with drugs, alcohol, or family violence in the recent past. 

Whatever you mean by sole custody, we are going to talk more about what the term will mean for you in the context of a family law case in Texas. For starters, let’s jump into what the most essential and basic types of parental rights are so we can have a better idea of the terms and situations that are important to this conversation.

What are the most essential parental rights in Texas?

For starters, most parents in Texas after a family law case will have the right to be in physical possession of their child. Additionally, most parents will have certain rights and duties when it comes to raising that child. These rights and duties are part of being a conservator of a child. These decision-making rights relate to the important subject matter in your child’s life- their health, education, religious upbringing, and the list goes on. What I would call the most essential matters related to the growth and development of your child are included in these conservatorship rights.

What the state of Texas wants for your child is a situation where you and your co-parent are both fully invested in the rearing process. Even if your co-parent has only limited visitation with your children, he or she will still need to be able to pay child support. The same is true for you if you were the parent who has visitation rights. However, just because the law presumes that a joint managing conservatorship of your child is in his best interests does not mean that this is necessarily true for your child. If you believe that sole custody benefits your child, then here are some steps you may follow. 

Winning sole custody in a divorce or child custody case in Texas

When it comes to custody in Texas there are two types of which you need to be aware of. The first is known as physical custody. When we talk about physical custody, we mean the ability to be in physical possession of your child and to be able to make decisions for your child while he is with you. These are more simple decisions such as where your child goes on that given day, who he associates with, the food he eats, and the religious practices he observes (if any). You can also think of physical custody as having to do with the more immediate concerns in the life of your child. 

On the other hand, a parent in Texas also has legal custody rights related to their children. This is where a parent like you can exert their influence most fully. First, you may have the right to determine the primary residence of your child. This is the “crown jewel” in terms of conservatorship rights for a Texas parent. I say this because having the right to determine the primary residence of your child means that you will be able to have your child live with you on a full-time basis. 

Along with the right to determine the primary residence of your child, another important right that comes alongside it is the right to receive child support payments on behalf of your child. The parent who has visitation rights concerning your child will pay child support. This is another reason why being able to determine the primary residence of your child is so important in this discussion. Please note that a parent can have the right to determine the primary residence of their child both under a sole managing conservatorship and under a joint managing conservatorship. 

As we mentioned just a moment ago, the right to be able to consent to healthcare treatment for your child, make decisions regarding your child’s education, and apply for documents like a passport on behalf of your child are also a part of conservator rights. Duties such as the duty to provide materially for your child, the duty to educate your child, and the duty to provide your child with some kind of health insurance are also duties that you and your co-parent will share as a result of your family law case.

How to ask a court for sole custody of your child

The best interests of your child will be the central focus of a family court on any child custody matter that you bring before it. To be sure, there are many sub-parts to the decision of what is in your child’s best interests. Things like the needs of your child now, a history of parenting involvement for both you and your co-parent, the emotional needs of your child and the ability of you and your co-parent to provide a life for your child will all factor into a judge’s decision regarding best interests. 

What would you need to show if you want your co-parent’s parental rights terminated?

It is a high hurdle to clear if you would like to be named as your child’s sole managing conservator. It is an even higher hurdle to clear if you would like to have your co-parent’s parental rights terminated. This is understandably the case given that there is no going back from having a person’s parental rights terminated. Eliminating all legal connections between your co-parent and your child is an extreme step that is justified only in exceptional circumstances. 

To have your co-parent’s parental rights terminated you would need to show that your co-parent has an extensive history of abuse and/or neglect. For example, if your co-parent has been investigated on multiple occasions related to abuse or neglect of your child then that would seemingly be the sort of situation where you could have the evidence needed to ask for sole custody of your child. 

Evidence is the key part of this discussion that some parents jump past when we talk about terminating a person’s parental rights. Police reports, photographs, medical documentation, and testimony can all be utilized to substantiate any allegations made in your petition to terminate parental rights. Again, this is a difficult burden to bear. The state of Texas presumes that it is in the best interests of your child to have both of his parents in his life. To overcome this presumption is not easy. If you believe that the best interest of your child is served by having your co-parent’s parental rights terminated then you are best served by having an experienced family law attorney by your side to help you make arguments and present evidence.

Can you win sole custody of your child as a father?

One of the most frequently asked questions in a child custody setting that the attorneys with the Law Office of Bryan Fagan receive is whether the law treats fathers and mothers the same way. For whatever reason, there is a presumption among us that fathers are treated differently than mothers are in custody cases. Overall, the presumption among fathers is that they have no chance to win primary custody of their child, not to mention sole custody. 

In reality, the law in Texas treats mothers and fathers the same way. There are no laws in Texas that explicitly treat parents differently depending on their sex. However, the circumstances of your case will determine whether you are successful as a father in winning sole custody of your child. If you have played a substantial role in raising your child, then you are starting in a good position as far as asserting a claim to sole custody of your child. However, there is much more to this discussion than simply being present in the life of your little one. Working with an attorney at the Law Office of Bryan Fagan can position you ideally to achieve whatever goals you have in a child custody setting. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family’s circumstances may be impacted by the filing of a divorce or child custody lawsuit. 

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