Child custody issues are among the most emotionally difficult in the entire world of Texas family law. If you are going through a divorce or child custody case then you know first hand how stressful it can be to manage not only the legal proceedings of the case but also your emotions, expectations, and those of your children, as well. Although a lot of benefits can be derived out of a family law case the reality is that the case itself is unpleasant and takes a great deal of effort to push through. One of the most difficult aspects of the case will almost certainly be working to preserve as much time with your children as possible.
Whether your case is a divorce or child custody matter it is important to understand that issues regarding child custody ultimately boiled down to the best interests of your children. Or your case to go before a family court judge that judge would be charged with making decisions for your child that are in his or her best interests. if you didn't know any better, it may seem like the best interest standard is incredibly subjective and left up to the interpretation of each judge on an individual level. In many ways, this is true. Your judge can insert their own experiences and beliefs into the equation when attempting to discover what is in the best interest of your children.
Before we go any further and discuss the topic of how old your child has to be to choose which parent he or she lives with, I would like to walk through the best interest determination that a family court judge would be likely to utilize in your divorce or child custody case. I think if we were able to walk through these issues together then you will have a much better understanding of how a judge will approach your case in what impact, if any, your child's preferences on their living situation could have in your case.
How stable is your home and how stable is that of your opposing parent?
Consistency and stability in the lives of your children are incredibly important. When I am counseling a client on issues related to child custody I tend to use these terms quite a bit. Consistency and stability mean that your child has a dependable and nurturing parent at home who can provide him or her with all the essentials of life on an ongoing basis. No matter what your particular circumstances are and no matter what you are facing it is essential that you be able to provide a stable and consistent environment for your child to develop.
Having a stable home environment is crucial to being able to when as much time with your children as possible and retain as many rights and duties as possible about your children. A home safe from intruders, free from distractions that could take a child's attention away from school, and one where ultimately your child is safe are among the most important characteristics of a stable home. A stable home does not have to be a fancy or expensive home but it does need to provide your child with the basics of life so that he or she can attend school and grow up healthy.
Next, if your case were to go before a family court judge he or she would likely look at your employment situation to determine how likely you can provide a stable home for your child in the future. I am not saying that if you are a teacher and your spouse is a doctor that your spouse is much more capable of providing a stable home due to their larger than average income. However, what I am saying is that you need to be able to show the judge that you earn sufficient income to provide for the necessities for your children. If you have not worked for many years or have worked only part-time your divorce or child custody case may give you some motivation to go out and find a more stable and lucrative income opportunities. Note that this may also include a need for you to complete a degree or start your education so that eventually you were able to grow into a more stable and reliable job environment.
If you have moved a great deal in the past few years before your divorce or child custody case then that is something that you will need to reconcile with your attorney and with the court. Frequent moves due to your employment situation changing can be a double whammy in terms of bad signs to be able to show a judge that you are equipped to care for your child consistently. Another factor to consider in a child custody case is whether or not you have had romantic partners living with you in your home consistently. Having multiple members of the opposite sex moving in and out of your home can be assigned that you are not able to utilize good judgment and that your home is not a stable environment for your child. This is not me making values or ethical judgment it is simply me providing you with context from what I have observed in family courts across Texas.
Finally, I would point your attention towards Your ability to provide adequate childcare as a factor that a judge would consider when thinking about the stability of your home environment. Especially in an age like we're living right now your work situation may change in the next few months. Given that, you will need to be able to show that you can provide adequate child care for your child considering your different work responsibilities. This is an especially important consideration to make if you are trying to be awarded primary custody of your kids. Where will your children go after school? Who will be caring for them? How flexible is your work to be able to take your children to the doctor or other activities during the workweek?
How well will your child do from an emotional and physical perspective with you?
In addition to the stability of your home, a judge would look to the specific needs of your child based on their age and developmental level. The needs that are most important to a judge are the emotional and physical needs of your child. Does your child require long term care either for a physical or mental reason? Are you willing to help your child find medical providers if necessary? Are you supportive of your child's physicians in terms of their treatment of your child's mental or physical issues? These may be very relevant questions to be asked for your family.
An important question for you to ask yourself is are you willing to put the needs of your child in front of your own? More importantly, you need to consider your history with your child as far as showing a willingness to do so. Keep in mind that the time to start putting the needs of your child in front of your own is not a week before or a week after the beginning of your divorce or child custody case. Your years of life as a parent Before the beginning of your family law case will speak volumes to a judge. Quite honestly, judges are pretty adept at figuring out which parents have shown a history of being involved in a child's life in which parents are putting on an act for the court. Your long-term history is apparent matters a great deal when determining the best interests of your child.
Keep in mind that your child is constantly developing. This is true from a mental, physical, and emotional perspective. As a parent, you play the primary role in your child's life in terms of their being able to develop fully in these regards. As such, you will be charged with allowing your child 2 to grow as a young person into a functioning adult. A judge will view your history as apparent in terms of your ability to place your child into favorable situations as far as their schooling, extracurricular activities, sports, and other activities. Your willingness to participate in the daily life of your child will go a long way towards helping the judge determined that placing him or her with you primarily is in their best interest.
Will you encourage your child's relationship with the other parent?
Although you may feel like your child custody or divorce case is a battle between you and the other parent the judge will not view it that way. The judge will look to see which parent, if any, is willing to put aside their differences with the other parent and instead foster or encourage a fostering of the relationship between their child in the other parent. If you have spent the past few weeks or months going tip for tat with your spouse in a divorce case then this should probably give you the reason for pause. Consider that the fighting and acrimony between you and your spouse may feel necessary for the time being but almost certainly is not in the best interest of your child.
The state of Texas believes, and research tends to corroborate that belief, that children do best when they have a long-lasting and meaningful relationship with both of their parents. It can feel difficult and in fact, can be difficult for your child to be placed into a situation where he or she is getting pulled between two parents literally and figuratively. If you are willing to be the bigger person and make it obvious to the court that you have done everything you can to help your child foster of relationship with the other parent then this will go a long way towards helping the judge make a decision as far as the best interests of the child are concerned.
Consider what evidence your spouse would be able to produce that shows that you have interfered with his or her possession of your child in the past, that you have spoken negatively about your spouse in front of your child previously, and whether or not you have provided an incentive to your child to disrespect or disregard the desires of the other parent. I have seen many people's family law cases blow up in their faces when it comes to the forefront that they had denied custody or time to the other parent in the past. If you have a history of disregarding the right of your spouse to be with your child or have taken advantage of circumstances like this previously then you will have to account for that fact during your divorce or child custody case.
Finally, I would like to point out that a judge would look to the surrounding circumstances of your household when making the best interest determination regarding your child. If you have a strong support network in the form of family and friends that your child is actively involved with then this will almost certainly factor into the decision making of a family court judge as to what living situation is in your child's best interests.
The consistent instability of your household and the surrounding environment matters to a judge. We have already covered this topic but it comes up again as being relevant when considering how your extended network of family and friends has positively impacted the lives of your child. Grandparents, cousins, uncles, and aunts play a role in the lives of many Texas children. If you offer this kind of environment for your child while your spouse does not then this would seemingly be a point in your favor.
What about the opinions of your child? Do they matter?
Another important factor when determining the best interests of your child is taking into consideration his or her opinion on the subject of where he or she should live daily. I am envisioning a situation where your child can voice their opinion as to which parent should determine their primary residence. Many parents believe at the beginning of a family law case that the preference of their child is the only factor that matters. Many times I've spoken with parents to confidently tell me that their child prefers to live with him or her and that this seemingly would be the only thing that matters to a judge.
The reality of the situation is that a child's preference is relevant in certain circumstances. Once your child reaches 12 years of age a court can consider their preferences when it comes to determining custody questions like possession and Visitation. If you were to file a motion to have the judge confer with your child who is above the age of 12 then the court must allow this to occur. A conversation between the judge and your child will occur outside of court, off the record, and without attorneys or parties present. Keep in mind that the judge is not a family therapist and will be asking your child basic questions about their daily life in an attempt to learn their preferences as far as custody and what is in the best interests of that child specifically.
Keep in mind that a court can go against the preferences of your child. We have talked about many different factors that way on a judge's mind when considering the best interests of your child. If the other factor is all point towards awarding you primary custody but your child voices a desire to live with your spouse primarily then it is not a certainty that your child's preference will overcome the other indications favoring you. Quite the opposite, in my experience the other factors will win the day versus the desires of your child.
It can be quite stressful to put your child through a circumstance where he or she may have to come in between their parents in a divorce or child custody case. In your mind, it may be the only way to finish off your case but it can negatively leave a lasting impact on your family. You and your Co-parent should do everything possible to avoid placing your child in an uncomfortable and uncertain circumstance. There is no guarantee that the judge will put more of an emphasis on your child's wishes than on any other circumstance.
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 presented 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 about the circumstances currently impacting yourself and your family. Thank you for your interest in our law practice and we hope that you will join us again tomorrow as we continue to post relevant and unique content about the world of Texas family law.