WYNNE LAW FIRM
Fort Worth Family Law Attorneys
Child Custody Litigation in Texas
What is the process of litigating a child custody case in Texas like?
No two cases are exactly alike, but there is a general path these cases take. First, you’ll need to hire a lawyer and file a complaint—or respond to the one filed by your ex. There will be a number of pre-trial hearings, and each party may file motions to address the direction of the trial. There will be a discovery period, during which each party gathers evidence by requesting records, asking questions in writing, and scheduling depositions. Each party may also hire expert witnesses. The case can settle at any point, up to and including at or before a trial. At some point during the process, however, the judge may order the parties to attend mediation to try to reach a settlement.
At minimum, you can expect the process to take 6-12 months. Complicating favors, such as delays or hiring an expert witness, can further delay the process. A mutually agreed to settlement, however, ensures a rapid resolution, so if you and your ex can agree to custody, it’s in your best interests to do so.
Who gets custody while we litigate our custody case?
Since child custody cases can take a long time to litigate, many parents are concerned with who will get custody in the interim. You may be able to petition the court for a temporary custody order. You and your ex can also agree to custody, either formally or informally. If the parents are not married, however, the father does not have a right to custody until he legally becomes the child’s father—a process that can take several months.
If you are being denied time with your child, or if you are concerned about temporary custody during a divorce, talk to your lawyer now. Don’t try to manage the issue yourself, or you could make costly mistakes that have lasting effects on custody. Courts often defer to the current arrangement, so accepting that you don’t see your child might mean that you continue not to see him or her.
Is child custody different for parents who are not married?
Child custody decisions are based on the child’s best interests, not on a presumption in favor of either parent, or any specific child custody arrangement. This is true even when the parents are not married. Mothers and fathers are equal parents under the law, unless and until a judge decides otherwise.
There’s one exception to this rule: if a father has not been named the legal father of the child, he has no rights to the child, even if he is the child’s biological father or already has a relationship with the child. To change this, fathers must go through a process of legitimation. During this process, the court legally declares the father the child’s father. Once a child has been legitimated, the father has equal rights to the child, as well as equal obligations, such as the obligation to pay child support.
Will I need to hire an expert witness to get custody of my child?
There’s no requirement, legal or otherwise, that you must hire an expert witness to get custody of your child. Some parents, however, find that it’s helpful—particularly if specific facts are at issue. The reason for this is simple: courts operate according to evidence, not speculation. The judge will not take the word of either parent absent evidence. Expert witnesses offer evidence to support each parent’s claim. For example, if a parent claims that a child has been abused but has no evidence of this fact, the expert can provide analysis suggesting the child has been abused. Likewise, an expert can help make recommendations for difficult cases involving very young children, disabled children, or children with other special or unusual needs. A mother might hire an expert to outline the benefits of breastfeeding, for example.
What is a guardian ad litem?
A guardian ad litem is a court-appointed advocate for your child. Sometimes referred to as a lawyer for the child, the guardian’s sole duty is to represent the child’s needs and best interests. Not all child custody cases involve a guardian ad litem. But when one is involved, judges tend to defer to the guardian, since guardians have extensive powers to investigate the case and make recommendations. This means that it is in a parent’s best interests to be courteous to the guardian and gain his or her trust.
A judge may appoint a guardian if:
- The parents have very different views about how custody should be decided.
- There is an allegation or history of abuse.
- There is an allegation or history of substance abuse or severe mental illness.
- One or both parents have a criminal record.
- The child is disabled or has other complex or special needs.
- The child says he or she is afraid of one or both parents.
- There are other parties, such as grandparents or step-parents, seeking custody.
- The factors in the case are complex, demanding the assistance of an expert.
Do mothers always get custody?
No. The letter of the law gives absolutely no preference to mothers in child custody cases. However, mothers still do get custody in most cases. The reason for this is simple: mothers seek custody more often than fathers. Even when both mothers and fathers pursue custody, cultural norms can affect the outcome. Mothers are more likely than fathers to have been the child’s primary caregiver. This gives them a strong advantage in custody cases. The court will look not just at what you say, but at your historic relationship with your child. So ask yourself if you have a history of, and are prepared to, be the primary caregiver to your child.
Nevertheless, some judges are biased against fathers—and for that matter, some are biased against mothers, too. With a qualified lawyer and a strong case, you should be able to overcome these biases. But if you’re concerned that bias plays a role, talk with your lawyer early. You may even want to consider settling your case to prevent the judge from being able to dictate your schedule and relationship with your child.
What happens if the parents live in different states?
If the parents live in different states, the best interests of the child standard still applies. However, the court might look at additional factors, like which geographic location is best for the child. In most cases, moving away from a familiar neighborhood and school will not be in a child’s best interests, though there may be other factors compelling a move.
Parents who live in different states still maintain rights to their children. So even if one parent moves, that parent still has the right to visitation. The court may add language in its order clarifying which parent must bear the expense of visitation, or whether the parent who lives in a different state must return to Texas, or has the right to bring the children to their state, for visitation.
Can I move with my children if I have custody?
That depends. Most custody orders contain specific language addressing this very issue. You might have to get the court’s permission, or even your ex’s permission to move. So if you’re contemplating a move—or your ex has announced their intent to move—consider working with a lawyer to ensure everyone’s rights are protected.
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