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How does a judge decide custody disputes

Whether you are involved in a child custody case that exists as a part of your divorce or as a stand-alone custody dispute, you may be interested in learning how a judge would decide issues related to child custody. After all- your children are the most important part of your case and if you can gather information about how a judge is likely to view your situation that could offer you a significant advantage. 

When you add kids into a divorce that makes your case all the more complex. There are also a lot of preconceived notions and assumptions that people hold regarding child custody and divorce cases as far as what parents can expect as far as custody decisions. Do judges really favor mothers when it comes to handing out primary custody assignments? Can fathers only hope to win split custody? You need to be able to know what the reality is in these situations and what is myth created by people who don’t have direct knowledge of these situations. 

Here is one thing that I have to learn in regard to child custody and what people think are accurate beliefs about this subject: your instincts, assessments and second hand information may be completely wrong when we compare them to the law in Texas on child custody. Since a judge has to follow the law you need to know our family code says about child custody. Only then can you have any basis to start hypothesizing about what a judge is likely to believe when it comes to child custody. 

Custody is a term that your friends use- It’s not a legal concept in Texas

Your friends, attorneys, television and the movies all use and abuse the term custody with great frequency. What this means for you is that in a trial you are not likely to hear a judge say the word custody. Rather, the term conservatorship will be mentioned a great deal. Conservatorship refers to the rights and duties that you and your spouse hold in relation to your children. 

When we talk about rights and duties, we primarily mean the ability to make decisions for your child in relationship to their medical and educational needs. What sort of classes your child needs to be enrolled in, whether it is in your child’s best interests to be home schooled, whether or not to allow your child to have that surgery or to try out other treatment modalities- these are examples of medical and educational decisions that a conservator of your child would make on a regular basis. 

Conservators also have the ability to spend time with their children. This is called possession. The periods of time that you are in possession of your child correspond to a possession schedule that can be created by a judge in the event that you and your opposing party cannot do so on your own. Depending on the specific circumstances of your case the judge will use his or her own discretion to make a determination that is in the best interest of your children. 

The ability to get information about different parts of your child’s life is also a key aspect of conservatorship. For instance, if you have ever had problems getting appointment information from your child’s doctor because your wife told the physician’s office to not allow you to obtain it- a conservatorship order would see to it that you not have that problem moving forward. Being able to have conservations with doctors, dentists, teachers and other adults in your child’s life is an underappreciated yet very important aspect of parenting and conservatorship. 

What does a judge look to when deciding conservatorship issues?

As I mentioned a moment ago, the Texas Family Code does contain some guideposts for judges to look to as far as assessing evidence that is submitted in a trial regarding child custody issues. On the other hand, Texas judges have a great deal of latitude when it comes to making decisions regarding issues related to child custody. Finding a middle ground is what many judges will ultimately seek to do. 

For instance, the judge has to look at the case from a best interests of the child perspective, but if your child is over the age of 12 then he or she can speak to the judge about their preference as to which parent he or she wants to live with primarily. A motion must be filed by either you or your spouse in order for this to occur. Otherwise, a judge can request that an in person meeting occur. This sort of thing does not happen regularly and is not the most important factor in every divorce or child custody case. However, it is a possible factor for a judge to consider. 

On a more serious note, a judge will need to consider if your child in danger or is being harmed (mentally, physically or emotionally) when determining custody and conservatorship questions related to your case. Unfortunately it is a reality for too many kids that their home life is not as safe and loving as it should be. Through no fault of their own, parents and other family members can engage in behavior that goes against their safety. 

You need to be aware of the circumstances that are impacting your child and prepare for those. Do not hide information from your attorney because it causes you to look bad or  that you think it is irrelevant. Be honest with your attorney and share information like this with him or her. The attorney can help you make a decision as to whether or not it is relevant. When it doubt make your attorney aware of circumstances that can impact your child custody case- negatively or positively.

A real life example of how failing to share information with your attorney can cost you

A few years back I was representing a young father in a child custody dispute that he was having with his child’s mother. The child’s mother had removed his young son from Texas and had taken him to Georgia to be closer to her family. Our client had agreed to let the mother take his son to see family but his idea was that she would be returning the child to him after a week or so. These folks had no court orders and were just “sharing” their child based on loosely agreed to possession schedules

Well, our client was surprised to get a phone call from the mother that she had a change of heart and that the kids were going to be staying with her for the near future in Georgia. Understandably, our client got very concerned and began his search for representation to help return his kids to Texas. Once he settled upon our office to represent him, we went about the work of getting the kids back home. 

We filed a motion to have a hearing set to discuss these issues with the judge. At the hearing as we were about to walk into the courtroom the attorney for the child’s mother hands me some paperwork that displays a mugshot. The man photographed in the mugshot was, apparently, the uncle of my client. He was a convicted sex offender who was living in the same house as my client. 

When I presented this information to my client it became apparent that he was embarrassed that he hadn’t brought it up to me before. We were about to go in to see a judge who would be making an important decision regarding the overall custody of these kids- would they be ordered back to Texas? Could my client win temporary primary conservatorship? A lot of questions could have been answered that day- and answered in our client’ favor- had he been honest with me about these things.

What we had to do was fight this battle when we had better ammunition to fight with. At that moment, we had nothing in particular that was strong about our case. Certainly, I wanted to avoid having this issue be brought before a judge. In the long run it worked out ok for our client. The kids eventually came home to Texas and he was able to win a split in the conservatorship area with the child’s mother. The situation could have been a lot worse in regard to losing a great deal of rights and privileges associated with parenting. 

What type of conservatorship arrangements are possible in relation to your children?

Most parents involved in divorce and child custody cases will be named as joint managing conservators of their children. This means that you and your opposing party will share most of the rights and duties associated with parenting your child. The difference between joint managing conservators is that one of you will be named the primary, custodial parent. This is the parent with whom your kids reside primarily with during the school year and who is also eligible to receive child support payments from the other parent. 

The non-primary parent will be able to have visitation with the kids according to the possession schedule that I was describing to you earlier in this blog post. The common possession schedule is what is known as a Standard Possession Order (SPO). First, third, and fifth weekends of each month during the school year, extended visits in the month of July and during the summer as well as alternating years of possession during the major holidays are hallmarks of a SPO. 

More infrequently is a Sole Managing Conservatorship ordered in relation to a child custody case. A Sole Managing Conservatorship can be awarded in the event that a judge believes that doing so is in the best interests of your child. A history of domestic violence on behalf of one parent, a history of committing other sorts of violent crimes, drug use, being an absentee parent or a parent who does not believe he or she is capable of taking on the responsibilities of parenting could be named as mere possessory conservators of your child. This means that their parental rights and duties have been scaled way back but that he or she does have the right to be in possession of your child during certain, pre-determined periods of time. 

The sole managing conservator of your child has the ability to determine where your child will live, can make all decisions regarding medical and psychiatric care, can make all decisions regarding your child’s education and has final say on where your child will worship and to what degree your child will participate in religious activities. 

Ultimately the power to make decisions on custody rests in your hands

Most child custody cases do not reach the inside of a courtroom. That is because the parties to a custody case will typically settle long before a trial. This is for the best since a judge, however well meaning, will not have the time to make as informed decision as you and your opposing party on issues related to your child. So, if you can it would make sense to allow yourselves an opportunity to create your own plan. You two can work together on these issues and come up with very flexible, personalized options for a whole lot of things related to custody. It takes some work and some bargaining to get there, but I find that most people think it is worth the effort to do so. 

Questions about child custody in Texas? Contact the Law Office of Bryan Fagan

If you have any questions about the material presented to you today in our 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 where you can have your questions answered and issues addressed directly. Thank you for your time and attention today and I hope that our office will earn an opportunity to speak to you about how we can serve you and your family. 


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