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Common Child Custody Questions and Answers
Geographical restrictions come up all the time. Simply put, a judge can order or the parties can agree to impose a restriction on where a child can primarily live. For instance, it could require that a child’s primary residence be within Smith County, or even Tyler or Pine Tree ISD, or often X county and contiguous counties (bordering counties). Such restrictions generally apply to the primary residence—that is, where the custodial parent lives. They don’t apply to where the non-custodial parent lives (sometimes called the possessory parent). Why? They are designed to preserve the non-custodial parent’s visitation and ensure that he/she doesn’t have to travel a great distance to get visitation with the child. This is of huge importance. Think about it. If one spouse gets to designate where the child goes to school, and where the child lives most of the time, but can up and move to California one day, this puts the other parent’s visitation at jeopardy because he/she can’t afford or have the time to visit very often. Because of this, a geographical restriction is typically desired by the parent that is non-custodial and not always desired by the custodial parent. As such, geographical restrictions can be the one hang-up preventing settlement. They are that important.
Even if one is imposed, parties are generally allowed to “lift” the restriction if they agree in writing or if the non-custodial parent moves out of the restricted area. If neither is the case, a party would need to go to court and argue it should be lifted. There are creative ways to try and lift a restriction, such as the custodial agreeing to pay certain travel costs or to travel more so as to increase visitation for the non-custodial parent.
A motion for enforcement could be an option. If a parent isn’t giving you the visitation you are allotted, isn’t providing you the address where he/she lives and is secreting the child, or is violating the order via other means, you could file a motion for enforcement. While called a motion, this is a legal proceeding requiring a hearing, certain service and notice to the other side, and has many other legal intricacies that cannot be adequately summarized here. Suffice it to say that you don’t have to stand pat and let the other parent make a mockery of the court order; you can try to hold that party in contempt, ask that they be fined, put on probation or even imprisoned (which is fairly rare mind you). Finally, you can get your attorney’s fees reimbursed (at least an order stating as such) if the other side is found in contempt.
These motions are sometimes filed with a petition to modify, which can further complicate matters. Don’t hesitate to call an attorney and discuss your options if you are looking to enforce an order or defend yourself against such a motion. Judges take court orders seriously and violations can be punished severely.
Aaah, the standard possession order or “SPO.” Maybe no other acronym is as common in family law circles. Stated simply, a SPO is a custody framework the Texas legislature has adopted as applicable in most custody disputes. There are many wrinkles to a SPO, but basically one parent is the custodial parent and the other parent gets the child the 1st, 3rd and 5th weekends of the month, a Thursday evening or Thursday overnight visit (unless the parents live far apart), relatively split summer visitation, and shared holiday visitation. A judge doesn’t necessarily have to adopt a SPO in your case, but think of it as the default order if there is no good reason to deviate from it. There are a lot of reasons to deviate from a SPO, such as work schedules making it unworkable (parents that work on a rotation, EMT’s, nurses, etc.), because the child is under three, or because one parent has abused or neglected the child in the past. SPO’s are often given when the parents go to court without an attorney or when a parent goes to court to get child support through the Office of the Attorney General (“OAG”). But you don’t necessarily need to “settle” on a SPO. Good family law attorneys often attempt to modify the SPO to make it fit your circumstances better, or can argue for an entirely different visitation schedule.
If you already have a SPO, you could try to modify it when it is no longer in your child’s best interest. A SPO is not presumed to be best in a modification suit; a judge might be more likely to order a custom possession order.
If your child is under three years old, the SPO is not applicable. Some judges have preferred “under three” orders. When a child is under three, judges are to consider many things before finalizing custody, including the bond between the parents, the prior routine of the child, the ability of the parents to provide for the child, and the parents’ prior contact with the child.
The law says no, that fathers are supposed to be on equal footing with mothers in custody disputes, all things being equal. The problem is not all things are equal. Many mothers are perceived to be better providers, especially for young children. Fathers might, and that’s a big might, have to work a bit harder to convince judges that they are the best primary caregiver, but this doesn’t mean they have no chance. In fact, I have represented many fathers who become the custodial parent. The bottom line is judges will not grant/deny certain visitation solely because you are a man or a woman; they care much more about your actions and your ability to provide a safe and loving environment.
Custody orders (often known as an Order in Suit Affecting the Parent-Child Relationship) have to be followed unless you and the other party agree to do something else. For instance, even if you have a SPO, if you decide to do alternating weeks you can do this. But remember, once the other parent wants to follow the order, you must do so. You cannot legally change the custody order without a judge’s approval. So if you are getting more visitation than the order allows, you might want to consider modifying the order to reflect your informal agreement; if you don’t, the other parent can always insist on the more restrictive terms in the order. Vice versa, if the other parents is exercising less visitation than the order allows, you might want to consider modifying the order to ensure you and your child’s routine continues.
A good family law attorney will discuss your options and can advise you on whether a petition to modify is a good option for you. Don’t hesitate to call. We offer different payment arrangements when representing clients in suits to modify because we recognize this is at least your second time fighting over custody and you don’t want to spend as much as the first time.
Drugs are unfortunately a huge issue in many of our cases, especially those involving CPS. When a parent has a drug history, we can typically obtain a court order requiring the parent to take a drug test, including a hair follicle test that can typically detect drugs taken in the prior 3 months or more. When a parent is on drugs, judges will likely restrict that parent’s visitation with the child, and sometimes suspend it all together. We also typically insist on random drug testing orders when a parent has or might test positive; this way, the other side can be caught red-handed if he/she decides to use during the pendency of a case.
Typically, if you request a drug test, you can expect to be drug tested yourself.
Payment for a drug test varies by the court. Some judges prefer that you pay for the other side’s drug test, but orders that they reimburse you should they fail the test. Other judges require them to pay, but you must reimburse if they pass.
General Family Law Topics
Each family is unique and ever-changing; family members have various viewpoints and goals, sometimes good-intentioned and sometimes not, and these viewpoints and goals can be quite fluid, changing by the month or over the course of years. It’s no wonder then that family disputes arise frequently, and that the government is often tasked with settling these disputes. Texas, like other U.S. states, has adopted a fairly flexible family law system that accounts for the broad and complex nature of family disputes. It provides set rules and guidelines, of course, but also many ways for parties to come to a resolution without trial.
I take pride in representing all types of parties in custody disputes. I’ve represented mothers, fathers, relatives and even children in CPS cases. Some law firms focus almost entirely on father’s rights . I do not, but I do strongly believe that fathers, all things being equal, should play as big a role in their children’s’ lives as mothers.
Fathers are not “supposed” to be at an inherent disadvantage in custody proceedings. In reality, they often are, especially when the child is very young. Some of this is self-inflicted; many fathers live up to the label “deadbeat dad” and create a stigma that tarnishes the image of other, respectable and reformed, fathers. For those that are not deadbeats, it can be difficult to overcome the stigma. This is especially true when a father has made mistakes in the past and it becomes very easy to pigeonhole him with other dads that have obviated their responsibilities. You need an attorney that is able and willing to fight for your perspective. Even if you’ve made mistakes, your parental rights deserve protection. You deserve the right to be heard. Fathers, like mothers, are entitled to as much custody as is in the best interest of the child. Fathers, like mothers, make mistakes. And fathers, like mothers, should share parenting responsibilities if they are deemed fit to do so.
A SAPCR is a suit requesting custody of or access to a child, child support, or the establishment or termination of a parent-child relationship. It can be, and often is, filed as part of a divorce.
Who can bring suit: Standing to bring suit can be a contested issue in SAPCR’s. Some of the many parties that can file a SAPCR include:
- Parents/guardians and legal representatives
- Men claiming to be the child’s father
- Grandparents in specified instances
- Close relatives
- Individuals that have had physical custody of the child for a requisite time period
- Settlement: In some instances, a SAPCR is not highly contested and the parties can come to an amicable settlement. A Tyler family law attorney can help facilitate settlement through an informal meeting with the opposing party, and his or her attorney, through mediation, and by other means.
- Temporary orders: A Tyler family law attorney can help his or her client obtain temporary relief through temporary orders. Temporary orders are meant to be a stop gap, providing for the safety and welfare of the child while a SAPCR is pending and no final order or settlement has occurred. For instance, temporary orders can provide a party temporary child support, custody, attorney’s fees, and other protective measures.
- Best interest of the child: The court’s primary consideration in determining custody is the best interest of the child. Innumerable factors can be considered in making this determination, including the emotional and physical well-being of the child now and in the future. Because a best interest determination is so broad and subjective, all forms of evidence could be important. A major part of the attorney’s job is to find and emphasize favorable evidence while developing a counter-attack that diminishes unfavorable evidence.
Texas Child Protective Services (CPS) can terminate your parental rights in cases of child abuse and neglect. However, there are strict guidelines regarding how and when CPS can terminate or otherwise limit your parental rights. In high-stakes cases like this, a Tyler family law attorney can help ensure that proper procedures are being followed and that your perspective is being heard. I currently take CPS court appointments and represent adults, as well as children, in CPS cases in Gregg and Cherokee counties.
Family violence? Abuse and neglect? Has your ex taken off with your child? An effective East Texas family law attorney knows there are many types of emergency relief that can protect children and parents quickly and without undue delay. Protective orders, temporary restraining orders, writs of attachment, and writs of habeas corpus are just some examples of the relief available.
So, you’ve been ordered to pay child support. What now? Well, first and foremost, you should make sure that you pay it monthly and don’t get behind. The Office of the Attorney General enforces child support obligations and has many tools at its disposal to do so, including:
- Withholding wages
- Suspending licenses
- Filing a Motion to Enforce: The OAG can file this motion when you are behind on child support payments (in arrears). It is often granted unless you can show an inability to pay despite your best efforts. This is a very high standard that typically requires a physical or emotional handicap. If granted, you will likely be placed on civil probation (or community supervision), which has specific terms, such as reporting to a probation officer and paying probation fees.
- Filing a Motion to Revoke: Failing to abide by the terms of your probation can result in a motion to revoke. If granted, you will likely be placed in jail for 90 days. Smith County is especially strict on probation violators.
- He is married to the mother of the child and the child is born during the marriage OR before the 301st day after the date the marriage is terminated.
- He continuously resided in the household in which the child resided for the first two years of the child’s life AND represented to others that the child was his own.
- He married the mother of the child after the child’s birth, he voluntarily asserted paternity of the child, and he is voluntarily named on the child’s birth certificate.
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