For any parent, the thought of a child custody battle is nerve-wracking. Custody disputes can profoundly affect parent-child relationships and the family dynamic as a whole, making it one of the most emotionally challenging aspects of any divorce.
If you're entering a child custody battle, you need a family law lawyer you can trust at your side. At Cofer & Connelly, PLLC, our Austin child custody lawyers will help you understand how courts handle child custody in Austin, Texas and determine the best way forward in your custody case. Our family law lawyers will handle the legalities so you can focus on maintaining a strong connection with your child throughout the divorce.
How Does Child Custody Work in Texas?
Before we begin, it's important to know that Texas courts don't use the traditional terms associated with child custody (noncustodial, custodial, etc.). In Austin, Texas, child custody is called "conservatorship." Custodial parents (who the child spends the majority of their time with) are called "conservators," and noncustodial parents are called "possessory conservators."
There are two types of common conservatorship arrangements in Austin, Texas.
1. Sole Managing Conservatorship (SMC)
In a Texas SMC arrangement, the court gives one parent the legal right to make decisions for the child. The conservator who receives SMC rights can decide:
- Where their children lives and goes to school;
- What types of care they need (medical, psychological, etc.);
- What religions or cultures they should be exposed to;
- How to handle discipline, etc.
Essentially, the conservator in an SMC makes any and all judgments for the child that have the potential to affect their life.
2. Joint Managing Conservatorship (JMC)
In a JMC arrangement in Texas, both conservators share time with the children and make decisions for them. That means that the parents must agree on decisions like:
- Where the child goes to school;
- What type of care they receive;
- How they're disciplined;
- How much time the child should spend with each parent;
- How to handle events like holidays, etc.
Since Austin child custody lawyers typically assume that children benefit from spending time with both their parents, most courts prefer JMC arrangements when handling conservatorship cases. However, if a parent is unfit to care for their child (abuses substances, acts inappropriately around them, disciplines them excessively, etc.), the court may award the more fit parent an SMC arrangement to protect the child. The court's primary objective in conservatorship battles is always to preserve the child's best interests, everything else is secondary.
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What’s a Parenting Plan in Austin?
If you're ramping up to a conservatorship case, you've probably heard the term "parenting plan" a few times. Parenting plans lay out the terms for a conservatorship arrangement, stipulating how the parents will handle custody and act around their child and one another.
The Austin court requires every parenting plan to incorporate mandatory clauses, such as:
- Which parent the child will spend more time with if the parents want a JMC (in other words, which parent should be the primary conservator). Conservators get certain head-of-household (HoH) tax breaks, so some parents who want a 50/50 conservatorship will trade-off as primary conservator every other year.
- How the parents plan to split conservatorship (what days of the week the child will be with each parent, how they'll handle holidays or vacations, etc.).
- How the parents will further the child's best interests post-divorce. This includes ensuring the child continues to receive medical care, has access to education, etc.
However, parents can also add in other non-mandatory clauses to the parenting plan, such as:
- Preventing the parents from disparaging one another in front of or to the child;
- Itemizing certain costs to prevent issues if one parent can't pay for a certain cost in a given month;
- Agreeing on boundaries for behavior;
- Agreeing on acceptable disciplinary tactics;
- Defining academic expectations for the child, etc.
Courts typically prefer it if parents work together to draft a joint parenting plan. However, if the parents can't agree on a parenting plan, the court will ask each to draft their own plan. The court in TX will then take those plans and combine them to develop what the court considers an equitable conservatorship arrangement.
Having an experienced child custody attorney in Austin at your side throughout your conservatorship case is vital. A Texas child custody lawyer can help you understand the custody process more thoroughly and work with you to create a parenting plan that protects your parental rights and preserves your best interests. They can also help you negotiate with your spouse to help you and your soon-to-be-ex develop a health co-parenting relationship as you move past your divorce.
- Recommended Reading: How to Successfully Co-Parent With Your Ex
How to Prove a Parent to Be Unfit in Austin
During child custody cases, both parents will fight to the bitter end to receive an order in their favor. However, if one parent feels that the other is "unfit", they are justified in asking the court to review this claim. An unfit parent can be classified as someone who does not carry out their responsibilities to care for and protect their child. There are several key pieces of evidence that must be examined before a judge can rule on this issue:
- Is there a history of alcohol and/or substance abuse? If yes, is the parent willing to attend rehab and make significant changes in their habits?
- Is there a history of family violence or child abuse? Evidence needed to prove this claim include eyewitness testimony, medical records, and police reports.
- Was a child social study implemented and was it successful? Often, the court will assign an experienced official to run a home study of where the child would be residing. They look for signs of abuse, unhealthy living conditions, and neglect. Passing this study is critical to retaining your custody rights.
- Does the parent in question have a mental disability that prevents them from caring for or protecting the child?
Due to the severe consequences of being ruled unfit, allegations made are taken very seriously. Both custody and visitation rights are at risk, so any false allegations come with consequences. If you are unsure you have child custody issues, contact our Austin family lawyers right away so that you are led on the right path.
Do Father’s Have the Same Rights as Mothers in TX?
Under state law and in the eyes of the court, both the father and mother have identical custody rights. That is to say that no judge will finalize orders based on gender alone. However, if an unmarried father has yet to establish paternity and prove that he is the biological parent, those rights are stripped and the mother has sole managing conservatorship. With sole managing conservatorship, the mother has the right to make every important decision for the child including what school they attend and what healthcare they will have.
To establish paternity it can be done voluntarily via Acknowledgment of Paternity form or through a court order. DNA testing is also an option if the court finds it necessary.
Paternity Fraud – What Are Your Options?
Paternity fraud exists when a mother asserts that a man is her child’s biological father, even though she suspects or knows that he isn’t. This is commonly done so that the “father” signs an affidavit of paternity, ultimately forcing him to pay child support or expend resources to help raise the child.
What makes this even more devastating is that courts will generally have a difficult time reversing this if they see the child benefiting from the payments. This is where you need experienced and trial-tested legal representation from our Austin child custody lawyers.
At Cofer & Connelly, PLLC, our child custody lawyers in Austin, TX will take the burden of your dispute off your shoulders so you can focus on what's really important: your health and family.
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