Child custody is always difficult in a divorce. Hopefully, both parents want what’s best for the child and also want to preserve their own relationship with their child. Unfortunately, sometimes one parent is more concerned about “winning” than actually what’s best for the children of the marriage. If you find yourself in a battle with a parent like that, a San Antonio child custody attorney can help you to get through all the legal procedures that are involved.

What Are the Legal Procedures for Establishing Child Custody in Texas?

Texas has some very specific terms related to child custody, and it’s important to understand these terms before going through the precise legalities of how to establish custody. The first thing to know is that Texas uses the term “conservatorship” for what most people commonly think of as “custody.” Conservatorship encompasses all the rights, and the duties, of a parent. There are two types of conservatorship recognized in Texas: managing and possessory.

Managing Conservatorship

Managing conservatorship refers to the right of a parent to make major decisions in their child’s life. These are decisions like where they will go to school, what kind of medical care they will get, whether they will have a religious education and what it will be, and more. The state assumes that both parents should be involved in these decisions unless there is compelling evidence that one parent, or both, cannot be trusted.

Possessory Conservatorship

Possessory conservatorship refers to the actual physical custody of the child and where the child lives, as well as visitation rights.

It’s important to recognize that it is completely possible for a parent to not have physical custody of their child and yet still have full managing conservatorship rights. In this case, even though the child would live with one parent, that parent would have to consult the other parent for all major decisions. The court can award both parents both types of conservatorship, either parent one type of conservatorship but not the other, or even award neither type of conservatorship to either parent. The last is an extreme case, of course, and very rare.

Unmarried Parents or Parents Not Involved in a Divorce

Two married parents getting divorced: that’s the most common situation when you’re discussing child custody. But it’s important to know that there is a process for when the parents are not married or when you’re not seeking a divorce and yet a parent does want to establish conservatorship. Parents in these situations would bring a Suit Affecting the Parent-Child Relationship (SAPCR), which is the proper legal mechanism.

The suit starts by making sure that the parents are properly identified. This may involve establishing paternity either with a separate lawsuit or within the SAPCR, depending on the circumstances. This suit is filed in the county where the child lives, and then the other parent is served a copy of the lawsuit and given a chance to respond. In most cases, there will then be a court hearing in which both sides can make their case and the court will make a ruling.

Procedures for Married Parents Seeking Divorce

In most child custody cases, the child’s parents are seeking a divorce and working out custody as part of the divorce process. In this case, the legal procedure begins with filing for divorce. The person who initiates the divorce is known as the petitioner and should include their requests regarding child custody in the divorce petition and specify what type of conservatorship they are asking for. This is done as part of the broader divorce case. 

The other parent is now referred to as the “respondent,” and will be served the divorce papers either by process server or via the local sheriff, unless the divorce is an amicable one. If the parents agree not only on the divorce but also on issues of child custody, the respondent can sign a Waiver of Service and the process can immediately move forward. If they don’t, they will file an answer and possibly a counterpetition for divorce, setting out what they want in terms of child custody and other aspects of the divorce. Things then proceed, generally, along these lines:

Setting Up Temporary Orders

Either party in the divorce can request temporary orders for immediate child arrangements. These temporary orders will not be binding for the long-term and last only as long as the divorce is unsettled. The final divorce decree will set out the permanent arrangement. 

Discovery Process

During discovery, both parties exchange relevant information, such as financial and medical records, as part of the divorce process. These documents will also help to inform custody decisions.

Negotiations and Mediation

Texas law encourages parents to come to an agreement about all aspects of a divorce, not just child custody. Negotiations can be done before filing for divorce, and the simplest and easiest way to establish child custody and finish the process is if the parents can come to their own arrangement with the help of their lawyers. 

If that’s not possible, however, they can still negotiate at any point and will be encouraged to do so. They may be required to go into mediation, where a neutral third-party will facilitate a conversation and try to help a couple agree on all the issues of their divorce.

Trial

If the couple cannot come to an agreement about child custody or other aspects of their divorce, the case goes to trial. In a trial, each party’s lawyers will present evidence and arguments for why the divorce should be arranged in the way their client is requesting. In the end, the court will then decide what to do on all matters of divorce, including child custody.

It’s important to understand that the court’s priorities are a bit different when it comes to child custody than with any other aspect of the divorce. With asset division or spousal support, for example, the court will try to do what is fair and right for both adult parties in the divorce. But when it comes to child custody, there is only one standard: the best interest of the child. 

The court will not prioritize the desires, interests, or needs of a parent over that of the child in this matter and is not concerned with what is “fair” to one parent or another if that in any way compromises what’s best for the child. At the same time, the courts go into these situations assuming that what is best for the child is for them to continue having an active relationship with both parents. If you believe that the other parent should not be involved in your child’s life for some reason, it will be up to you and your lawyer to prove this.

Talk to a San Antonio Child Custody Attorney Today

If you need to establish custody of your child or want to challenge current arrangements, contact the Rojas Law Firm, PLLC in San Antonio now to talk with an experienced family law attorney.