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How Does A Court Decide Who Gets Primary Custody Of Children?

  • By: Ryan Hardy of Hardy Law Group, PLLC
  • Published: August 2, 2019
  • Category: Child Custody
How Does A Court Decide Who Gets Primary Custody Of Children

The Best Interest Of Children Standard.

 Child custody, or “conservatorship,” as it is called in Texas, is often the most hotly contested component of a divorce or parent-child suit. If you are seeking primary custody of your child, you should know what a court will consider in making its decision. Texas courts determine all things “conservatorship” by considering one question: What is in the best interest of the children?

So, how does a judge make such an important decision? There are several factors that a judge will consider, and courts have extremely wide latitude in their consideration. While a judge might consider every factor, not every factor must be satisfied. Similarly, a judge does not have to consider each factor equally. It also means that one factor can outweigh all the others. Courts are not concerned with awarding or punishing parents by making a certain determination; they are solely concerned with the best interest of the child.

Custody Of ChildrenFactors considered:

  1. Your child’s desires

A court has discretion to consider a child’s desires if the child is at least 12 years old, and they can evaluate the child’s reasoning. Courts are aware that it is not uncommon for an abused or neglected child to desire to remain home. Age, gender, and competency are all relevant to evaluating a child’s desires.

It’s important to note that under Texas law, there exists no presumption that a child is better off being raised primarily by a mother rather than a father without any evidence to support that suggestion. A court must make its custody decisions without regard to marital status or sex.

  1. Your child’s emotional and physical needs now and in the future

A child’s needs stretch far beyond financial support. Part of a child’s emotional and physical needs include preserving healthy parent-child relationships. A child’s psychological and emotional maturity relative to their age is an indicator of a healthy environment. While every child needs to be emotionally and physically supported, some children require more specialized care than others, such as cases involving physical or mental disabilities.

  1. Emotional or physical danger to your child

If there is a suggestion of emotional or physical abuse by a parent, a court will likely weigh these allegations heavily. Courts will consider any evidence indicating whether or not a child is safe from harm. Intervention of agencies such as CPS or reports from child psychologists can be introduced to prove that a child is safe from emotional or physical danger.

  1. Your parenting abilities

In Texas, there is a presumption that a child’s best interest is served by keeping the child with their biological parents. This presumption can be overcome by proof of bad parenting. Bad parenting may be an inability to keep a job to provide for the child, indifference in the child’s whereabouts or safety, a parent’s inability to stay out of legal trouble, or a parent’s unhealthy relationship with an abusive partner.

  1. The programs available to assist you

No parent is perfect, and courts recognize that part of parenting is having help from a support system. A court can consider and recommend programs that help with parenting skills in order to promote the best interest of the child. Proof of a reliable network to help in parenting weighs in favor of a parent’s conservatorship.

  1. Your plans for the child

A parent’s plans and promises for a child can be weighed as a part of the court’s decision as well. A parent acting in the best interest of their child will have planned for their care and success. For example, if plans to homeschool a child are thwarted by limited conservatorship, a court may consider the negative impacts that would have on a child.

  1. The stability of your home and any relevant acts or omissions on your part

Important to a conservatorship decision is the stability of a child’s home. Moving children to different homes and schools, becoming incarcerated and unavailable, substance abuse, domestic violence, unrelated persons in the home, and financial problems are all reason to give a court pause.

  1. The propriety of your relationship with your child

A court will consider seriously any allegations of misconduct with a child. If there has been violence, sexual impropriety, or emotional abuse within the parent-child relationship or between the child and a person the child is exposed to in the home, a court will alter conservatorship to ensure the child avoids harm.

  1. Any excuses for your acts or omissions

Everyone makes mistakes, and there may be an opportunity to explain past bad parenting. Because Texas takes the position that children are typically better off with their natural parents, courts will often give parents a chance to prove their ability to provide the best environment for a child despite evidence that may indicate otherwise.

As you can see, the “best interest of the child” can be broad and subjective, and it is truly determined on a case-by-case basis. Every child is unique with different needs and challenges. A court’s responsibility is to place children in an environment where their best interests are served.

To learn more or speak to a custody attorney in Fort Worth, call the Hardy Law Group at (817) 857-4111.

Ryan Hardy of Hardy Law Group, PLLC

About the Author Attorney Ryan Hardy graduated from the University of Texas at Austin with a BS in
Government/Political Science and a minor in Business Administration...Read More