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Texas Child Custody FAQ

Texas Child Custody FAQ
Hendershot, Cannon & Hisey, P.C.

Whether you are unmarried parents or married and going through a divorce, if there are minor children involved, then it’s highly encouraged that both parents seek a child custody or visitation order, whether by agreement or using Court intervention. In this blog, we’ve put together a few frequently asked questions that might come up in a Texas child custody case.

What Types of Child Custody Are There?

In Texas, there is either joint managing conservatorship (JMC) or sole managing conservatorship (SMC). The presumption set by the Texas Family Code is that parents should be named as joint managing conservators, meaning both share the rights and duties of a parent. However, absent an agreement between the parents, even in this situation, the exclusive right to make certain decisions about the child may be awarded by the Court to one parent only. If both parents are appointed JMCs, the judge will specify the responsibility each parent has jointly and separately. On the other hand, SMC awards the following exclusive rights to one conservator only:

  • Primary residence
  • Medical and dental treatment
  • Psychiatric / psychological treatment
  • Emergency contacts
  • Participation in school activities
  • Education

Outside of a divorce case, parents may also initiate a suit affecting parent child relationship (SAPCR). The orders pertaining to a child generally address the issues of conservatorship, possession of and access to the child, and other support related matters. In all issues concerning parent-child relationship, the best interest of the child is the primary consideration.

What Are My Options in Temporary Orders?

If the situation becomes complex, you can ask the court to issue one or more orders (including temporary orders) between the date you file for divorce and the date the divorce is finalized. Some people need temporary restraining orders (TRO) or temporary injunctions to keep a spouse from harassing them or their children. A TRO lasts for 14 days and can be granted without notice to the spouse or a hearing. A temporary injunction is granted after notice and a hearing and remains in effect until the divorce is finalized. They can also be used to settle which spouse should stay in the family home, who pays the bills, who will care for the children, and so on while the divorce is pending.

As a side note, it is also possible for a party in a SAPCR to request temporary orders. In SAPCR cases, the Court issues temporary orders addressing conservatorship, possession and access, and other support related matters of the child.

At What Age Can My Child Decide Which Parent to Live With?

The older a child is, the more likely his or her wishes can affect a judge’s decision. In Texas, children who are at least 12 years of age can have a say in where they live. However, their wishes only count as one factor in the judge’s decision-making process. There are other circumstances to take into consideration despite the child’s desires. The fact remains that the judge must consider the best interest of the child in rendering a decision.

Can I Move with My Child If My Job or Living Situation Changes?

In many cases, the initial custody orders prevent the primary parent from moving a certain distance away from a particular area (typically the child’s current county of residence or counties contiguous thereto). If you want to relocate out of state with your child and absent the written agreement from the other party, you need to get a court order allowing you to do so. Even if the original custody agreement doesn’t specify a restriction on the child’s residence, you still need to notify the other parent if you intend to move with the child. If the other parent doesn’t want their child to move, he or she can file an application for a temporary injunction that prevents you from moving until a court can hold a relocation hearing. At the hearing, you’ll have to show compelling evidence for the move. Again, the court will be deciding what is in the child’s best interest.

Can I Modify My Custody Arrangement?

If your situation changes, you can ask the court to modify an existing custody order by filing a modification case. The court can alter conservatorship, visitation, and medical support if there has been material and substantial changes in the circumstances of the parties and/or the child since the last custody order was entered. The changes must be shown to be in the child’s best interest. The burden is high, so contact our office if you believe that your order needs to be modified.

Do Grandparents Have Custody and Visitation Rights?

Because grandparents are not the biological parents of the children, they have limited rights with regard to visitation and custody. Grandparents are awarded certain rights and duties under certain situations only and again, subject to the best interest of the child.

Can a Parent Change the Child’s Last Name Without the Other Parent’s Permission?

You may jointly file a petition to change the last name of the child. However, absent a consent from the other parent, you may not legally change your child’s last name. In the absence of consent, you must file a petition in the county the child reside in, and notify anyone with a legal relationship to your child. If the child is over 10, he or she must also agree to the name change in writing.

If you have more questions, or you would like to discuss these answers further, talk to one of our Houston family attorneys. We have more than 150 years of collective legal experience to put to work for you. Contact us at (713) 909-7323 or fill out our online form to schedule a case consultation today.

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