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Your Houston Child Custody Case: The Basics

Your pending divorce has left a Texas-sized hole in your heart. Despite your pain and anger, your main priority is your children’s well-being. Now that they won’t be raised in a two-parent household, you have a lot of questions. Will they still live with you in Houston or with their other parent in Deer Park? Can they go on the annual summer vacation to Puerto Vallarta with your side of the family? Who decides where they go to school? Luckily, there are Texas laws and procedures in place to help you answer these questions. This article provides basic information about child custody law in Houston.

What is Child Custody?

In Houston, child custody is called “conservatorship.” Conservatorship is the right to make decisions for a child, including where that child will live and other determinations about his or her health, education, and upbringing. Usually, conservatorship is not about the amount of time one person spends with a child. Instead, it addresses the rights, powers, and duties related to a child.

Two people can share custody (joint managing conservatorship) or one person may be granted exclusive custody (sole managing conservatorship). Even in situations of joint managing conservatorship, two people may not share rights equally. For example, one person may receive more physical time with the child and often one person’s home will be designated as the child’s primary residence.

Visitation, known as “access and possession” in Texas, is commonly granted to a person (“possessory conservator”) who has joint managing conservatorship but whose home is not the child’s primary residence. Texas law outlines a Standard Possession Order for visitation.

Who Can File for Child Custody in Houston?

Only individuals with a legally-recognized interest in a child may file for custody of that child. In general, qualifying individuals include the following:

  • A parent of the child;
  • The child (through a court-approved representative);
  • A custodian or guardian of the child;
  • A government entity or other authorized agency;
  • A man claiming to be the father of the child; or
  • A relative, foster parent, or other third party who also meet other requirements.

If a parent-child relationship between the child and each living parent has been legally terminated, the following people cannot open a new child custody case:

  • A former parent;
  • A biological father; or
  • A family member of the former parent.

How Do I File for Child Custody in Houston?

There are three basic ways to file for custody in Houston:

  • Filing a divorce petition if you are married to the child’s other parent;
  • Filing a Suit Affecting the Parent-Child Relationship (SAPCR) if you are not married to the child’s other parent, but paternity has been determined; or
  • Filing a paternity case, if you are not married to the child’s other parent and paternity has not been established.

Can Individuals Reach a Custody Agreement on Their Own?

Yes, with approval by the court. Family courts encourage people to reach custody agreements on their own whenever possible. A court will generally approve an agreement so long as it meets certain legal requirements. In many circumstances, agreements are the fastest and least expensive way to get child custody orders.

You can call Access Facilitation at the Domestic Relations Office at (713) 755-6757 to request help negotiating temporary custody arrangements that may later become permanent custody agreements.

What Happens if No Agreement is Reached?

If individuals are unable to reach a custody agreement, a judge will conduct a hearing to decide final custody orders.

Before a judge hears a case, he or she may order the parties to go to mediation. If the parties reach an agreement during mediation, the court will generally make that agreement a permanent custody order.

In deciding custody, a judge may also order a social study to get a neutral assessment from a trained professional. As part of the study, an evaluator will interview parents, children, and other individuals. He or she will also review school records, medical records, and other agency records. The evaluator will file a written report within 90 days that contains a recommendation about conservatorship and access and possession. During the custody hearing, the judge will take the report into consideration.

Custody hearings can be complicated and you may want to consider consulting an experienced family law attorney in the Houston area.

What Does a Judge Consider in a Hearing?

In Houston, a judge has significant discretion when making custody orders. The most important factor a judge will consider is the best interests of the child.

Texas law says a child has the right to frequent and continued contact with both parents. Often, that means a judge will grant joint managing conservatorship to both parents unless he or she believes that doing so will harm the physical development and emotional wellbeing of the child. For example, a court may give sole managing conservatorship to one parent if there is evidence of child abuse or alcohol and drug addiction by the other parent. The law also states the judge cannot give preference to one parent simply based on a parent’s gender.

Other factors a judge may consider include the following:

  • The wishes of the child;
  • Any special medical, physical, or emotional needs of the child;
  • Whether a party has participated in extracurricular activities with the child;
  • The work schedules of both parents;
  • Whether one parent has previously been the primary caregiver of the child;
  • The parental abilities of each party;
  • The stability of each parent’s home; and
  • Whether a person promotes a friendly parenting environment with the other parent.

What if I Fear Immediate Harm to my Child?

If you fear immediate harm to your child, you can file for temporary emergency orders called “ex parte” orders. These orders are very rare and difficult to obtain. However, you may seek ex parte orders in situations where a person is unlawfully keeping your child or your child is at risk for abuse. When you file for temporary emergency orders, the judge may grant a hearing to determine whether the orders are necessary.

How Can I Change an Existing Custody Order?

If you want to change an existing custody order, you need to file a motion to change conservatorship or possession and access with the court. Unless there is an emergency situation, you generally need to wait at least one year from the date of the original order before requesting a change. To get a modification, you typically need to prove that the new order would be in the best interest of the child and that circumstances have significantly changed since the last order was issued.

Where Can I Go for Additional Help With My Case?

Child custody cases can be stressful and confusing, particularly when the adults involved can’t seem to put their differences aside. To help your family cope with this difficult time, you may want to consider contacting a counselor or participating in parenting and family classes. If you want legal help, you may want to talk to a local attorney, and there are also low-cost options available in Houston, such as a volunteer attorney or legal aid office.

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