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Posted by on May 2, 2017 in Custodianship | 0 comments

Determining Custodianship in the State of Texas

Determining Custodianship in the State of Texas

One usual cause of disagreement between divorcing couples is child custody, as there are times when both parents do not want to be separated from their child. In the olden days, due to the observance of a practice called “maternal preference,” child custody was awarded to mothers. This was based on the presumption that mothers were naturally better equipped with the love and concern necessary in raising their children.

In court-litigated divorce cases that involve the issue of child custody, the court usually does not ask a child to testify; the judge also would never decide to talk with the child privately to hear his/her interests, thus, parents who are worried over their children testifying would be baseless fear. The court, instead, hires a lawyer or a social worker who will represent the child and inform the judge of what their interests are.

Though it is the court which has the final say with regard to custody, having a lawyer on your side, someone who is really versed in family law would be a big influence in swaying the court’s decision to your favor. Having custody of your child does not mean that you are more capable financially, nor does it mean that you can decide anytime to move or change residence or state, however. Since your former spouse also has rights over your children, regardless of how limited it is, you will need his/her approval (or the court’s approval) before moving to another city or state can be done.

A court may decide to award any of the following types of custodianship:

  • Legal custody – courts in some U.S. states sometimes decide on awarding this type of custody to both parents (called joint legal custody). Legal custody gives the custodial parent the right and responsibility to decide on matters concerning the child’s growth and basic needs, like education, religion and health care.
  • Physical custody – this type of custody gives the custodial parent the right to live with his/her child, while the other parent, visitation rights. In the event that the divorced parents live quite near one another and the child spends considerable amounts of time with both of them, then the court may allow joint physical custody instead.
  • Sole custody – though many courts are now veering away from entrusting a child to only one parent and increasing the role played by fathers in a child’s life after divorce, sole custody would still be the decision if one parent is judged to be unfit due to factors, such as dependency to drug or alcohol, neglect or abuse of child, mental incapacity or an unfit new partner.
  • Joint custody – this type of custody has various forms:
    • joint physical custody;
    • joint legal custody;
    • joint legal and physical custody

Divorced couples who are awarded joint physical custody also usually enjoy joint legal custody, but not vice-versa.

Though states may differ with regard to the factors these consider when deciding over a child custody case, one factor remains constant: the best interest of the child. In the state of Texas, specifically, courts determine custodianship or conservatorship of a child using the following standards: (i) assurance that the child will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (ii) provision of a safe, stable, and non-violent environment for the child; and, (iii) encouragement of parents to share in the rights and duties of raising their child even after they have separated or dissolved their marriage.”

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