Since you’re here, I assume that you’re considering consulting with an Austin Child Custody Lawyer. If that’s true, there are a few things you should know about me:
- I am an experienced child custody attorney and an Austin native.
- I am committed to being open and honest with my clients at every stage of their case.
You can rely on me to not sugarcoat my advice or over-promise results. You can learn more about my philosophy.
- Unlike some Austin attorneys, family law is all I do.
While I began my career practicing complex commercial litigation, I transitioned to family law because I can make a significant impact in people’s lives.
- The testimonials from my past clients are a great source of pride.
Not quite ready to talk? No problem. Keep reading to learn more about the laws that govern these decisions and how an Austin child custody lawyer could help.
Texas Child Custody Laws Explained
The Key Distinction Between "Conservatorship" (Custody) and "Possession" (Visitation)
The Texas Family Code uses the term “conservatorship” to refer to what is called “custody” in many jurisdictions. Family law litigants frequently conflate conservatorship and possession (visitation), two concepts that are actually separate and distinct.
For example, many clients state that they want "joint custody" of their children on the assumption that such a child custody arrangement will result in a "50-50" possession schedule.
Conservatorship, however, relates to parental rights and duties--the right to make educational and medical decisions on behalf of your child, for example--and is separate from the possession schedule (which days during the week you will have visitation with your child according to the child custody agreement).
Ben Carrasco is the Austin lawyer best equipped to help you with your child custody case.
Joint Managing Conservatorship
Under the Texas Family Code, appointment of the parents as joint managing conservators is presumed to be in the child's best interest unless there is a history of family violence involving the child's parents.
If both parents are appointed as joint managing conservators, either by agreement between the parents or by court order, the court must specify the parental rights and duties that are to be retained by both parents, those that are to be exercised by joint agreement, and those that are to be exercised exclusively by one parent.
In general, joint managing conservators will be expected to reach an agreement on important child custody decisions concerning the child's physical care, support, and education.
However, if the parents have diametrically opposed views on an important issue--if, for example, one parent is adamant that the child be home-schooled while the other parent is equally insistent that the child attend a traditional school--then the court will grant one parent the exclusive right to make educational decisions on behalf of the child.
When both parents are appointed as joint managing conservators, the court will typically designate one parent as having the exclusive right to determine the child's primary residence. This will be the "custodial parent."
If your divorce decree lacks a geographic restriction (restricting the parties to Travis County, for example) for child custody, the custodial parent will be allowed to move with the child to a different city or state without the other parent's consent.
The court will also determine which parent will receive child support from the other parent. Generally, the custodial parent, or the parent with whom the child resides for a majority of the time, will be entitled to receive child support payments from the other parent.
The Texas Family Code specifically provides that joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child of each of the joint conservators. An attorney in Austin could help a parent fight for joint managing conservatorship in their child custody case.
Sole Managing Conservatorship
Appointment of one parent as the child's sole managing conservator--or winning "sole custody" in the common parlance-- is relatively rare in child custody cases. As noted above, there is a legal presumption that appointing the parents as joint managing conservators is in the child's best interest.
However, this presumption can be overcome where there is evidence of family violence, extreme conflict between the parents, evidence of endangering conduct by a parent (drug or alcohol abuse, child neglect, etc.), or if there is a significant geographic distance between the parents' homes.
A parent appointed as a sole managing conservator has certain exclusive rights, including (but not limited to):
- The right to determine the child's primary residence
- The right to receive child support payments from the other parent
- The right to make decisions concerning the child's education
- The right to consent to medical treatment
Thus, in contrast to a joint managing conservatorship arrangement, a sole managing conservator can make a range of critical decisions on behalf of the child without the other parent's consent.
If one parent is appointed as the child's sole managing conservator in the custody agreement, the other parent will be appointed as a possessory conservator, unless the court finds that the appointment is not in the child's best interest and that parental possession or access would endanger the physical or emotional welfare of the child.
A parent appointed as the possessory conservator has fewer rights than the sole managing conservator but still has certain basic rights afforded to all parents under the Family Code, including:
- The right to receive information from the other conservator of the child concerning the health, education and welfare of the child
- The right to confer with the other parent to the extent possible before making a decision concerning the health, education and welfare of the child
- The right of access to the child's medical and educational records
- The right to consult with the child's physician, dentist, or psychologist
- The right to consult with school officials concerning the child's welfare and educational status
- The right to attend school activities
Once the court determines conservatorship, it will enter a possession schedule that is in the child's best interest (although the parties are allowed to craft their own agreement regarding possession).
For a child three years of age and above and whose parents reside 100 miles or less apart, the law presumes that the standard possession order set forth in the Family Code provides the reasonable minimum possession of a child for a parent named as a possessory conservator or a joint managing conservator.
This is the typical possession schedule in child custody cases for a possessory conservator or the joint managing conservator who is not the child's custodial parent.
Under the standard possession order, the possessory conservator or noncustodial joint managing conservator shall have possession of the child on the first, third, and fifth weekends of each month, beginning on Friday at 6:00 p.m. (or after school is dismissed) and ending at 6:00 p.m. on the following Sunday; and on Thursdays of each week during the regular school term beginning at 6:00 p.m. and ending at 8:00 p.m. There are additional provisions governing possession during holidays, birthdays, and summer vacation.
This is the default possession schedule under the Family Code. However, an Austin lawyer can negotiate a customized child custody schedule that is more compatible with their needs and schedules. Courts will generally adopt a schedule that is the product of negotiation between the parties.
How Do Courts Determine Child Custody?
In determining questions of conservatorship, possession, and access to a child, the court’s primary consideration is always the child’s best interest.
It is crucial that parents understand this key point: custody decisions are always made by assessing what type of arrangement will be best for the child, not what type of arrangement is best for, or preferred by, the parents.
As a parent your needs and desires are secondary to the well-being of your child. To prevail in a custody dispute, you need to be able to present a compelling case that clearly establishes that your desired child custody/visitation arrangement is actually what is in the best interests of your child.
Understanding the Best Interests of the Child Legal Standard
Texas law defines the ‘best interests of the child’ in a broad manner. This means that courts can and do consider a number of different factors when determining what type of custody and child visitation arrangement will be best. These factors include but are not limited to:
- The child’s age.
- The child’s desires.
- The current emotional and physical needs of the child.
- Each parent's prior relationship with the child.
- The parental abilities of the individuals seeking custody.
- The stability of the home.
- The parent’s acts or omissions that may indicate that the existing parent-child relationship is not a proper one.
- Any history of abuse or neglect by one of the parents.
- Any other factor that the court deems to be material to the child custody case.
Children 12 years of age or older can express their wishes to the court regarding conservatorship or the person who shall have the right to determine the child's primary residence. A child's preference, however, is not binding on the court. A child may want to live with a parent for the wrong reasons. While a child's preference is certainly entitled to deference, ultimately the court has the discretion to determine the child's best interest in a custody dispute.
The bottom line: All child custody cases require careful, attentive preparation by a skilled legal professional. Whether you are involved in a particularly contentious child custody case, or you are seeking a specific outcome, you should always be represented by an experienced Austin attorney who has the skills and legal knowledge needed to present the most compelling case on your behalf.
Can Fathers Get Primary Custody in Austin?
Absolutely. The Family Code expressly forbids courts from making decisions regarding conservatorship and possession of children based on the gender of the parties.
Nevertheless, courts have wide discretion in making these determinations and a bias in favor of mothers, particularly in "close calls" or where young children are involved, arguably persists with some judges.
It is imperative that fathers interested in obtaining primary custody of their children take an active role in their children's lives, particularly with respect to day-to-day "care-taking" functions like:
- preparing meals,
- taking the children to school,
- shuttling them to extra-curricular activities,
- attending parent-teacher conferences, etc.
Arguing that you have more financial resources than your spouse is not enough to be appointed as the custodial parent. You should be doing these things well before you become involved in a custody dispute.
You should also be prepared to mount an aggressive fight. Most litigants--both moms and dads--don't appreciate how costly it can be to properly litigate a child custody battle.
If you are committed to maximizing your role in your child's future, then you need to hire the best Austin lawyer you can afford and invest in your custody case.
When Can a Non-Parental Relative Get Child Custody in Austin?
Under Texas state law, it is possible for a non-parent to obtain custody of a child. However, it is far more challenging for a non-parent to obtain custody than it is for one of the child’s parents.
Further, if a relative is attempting to get child custody over the objections of one (or both) of the child’s parents, then their case will be especially difficult. That is not to say that it is impossible.
Relatives, most notably grandparents, but also adult siblings along with aunts and uncles, are sometimes able to obtain child custody. They are sometimes even able to do so over the vigorous, aggressive objections of the child’s legal parents.
In these cases, relatives will generally be required to prove that the kid’s parents present a danger to the child. Ultimately, these cases, like all other Texas child custody cases, are governed by the state’s best interests of the child standard.
How to Find the Best Local Custody Attorney for You
There are very few experiences in life that are more stressful than a divorce. Not only is there uncertainty concerning your future, but there’s paperwork to file, plans to be made, finances to be sorted out, and your children are likely having a tough time adjusting to the separation.
It feels like your life is eroding and your children no doubt sense your anxiety concerning the future. Custody battles can get very ugly very quickly. You need the best Austin child custody lawyer that you can find.
Look for an Attorney with Successful Experience Handling Custody Disputes
Family law firms generally have attorneys who focus only on child custody cases. When clients are locked in a serious child custody dispute, the best family law practices will call in an attorney who has experience litigating these types of cases.
Hopefully, your divorce will go much more smoothly and custody won’t turn into a tug-of-war. But if that doesn’t happen, you need someone who can make your perspective legally actionable and will fight tirelessly on your behalf.
That means doing the legwork and gathering the evidence you need to make the best case possible. That also means taking the pressure off of you to formulate the grounds on which you will claim to be the best fit for your children.
Look for a Lawyer Who Will Take the Pressure off of You
With so much to do to get yourself and your children situated, a skilled lawyer in the area can take a great deal of pressure off your shoulders during a child custody case. That means freeing up your time to focus on your children.
To be sure, the courts in these cases won’t be considering what’s best for you or your former spouse in a case like this. They will be focusing on what’s best for your children. That means the less stressed out and more stable you are, the greater the likelihood that they land with you.
Look for an Attorney with Experience in Your Kind of Child Custody Case
Experience is key. If your lawyer doesn’t have experience not only with child custody cases but your particular case in general, then you need to find a lawyer who does. Considerations that are relevant include:
- Does your child have special needs?
- Which parent is better to handle those needs on a day-to-day basis?
- Which parent provides the child with better continuity and stability?
- Will one of the parents be moving out of state?
- Is there a history of drug and alcohol abuse in the family?
- Is there a history of physical or emotional abuse in the family?
An Austin lawyer who is experienced in these custody issues will not be taken off guard and can use much of this to your advantage.
If custody of your children has become hotly contested, you want to be sure that your lawyer is comfortable with the litigation aspect of your case.
Look for a Lawyer Who is Local to You
An Austin attorney will not only be more available than out-of-city lawyers, but they will also have a familiarity with local judges, local laws, and local precedents. This can only help you as they make your case in court.
Look for an Attorney that You Can Trust and Communicate Effectively With
Child custody lawyers should have a specific set of qualities. You want a lawyer who is not only going to be a fierce advocate for you but also your children.
Therefore you want someone with a little bit of fire in their belly, but more importantly, you want someone who can empathize with your position. You want someone who you feel like you have a good working rapport with. You want to ensure that your needs are understood as well as your children’s.
You must able to trust the fact that your lawyer has yours and your children’s best interests at heart and that they have a firm understanding of what those needs are.
Look for a Lawyer Who Will Make Your Children the Top Priority
Under Texas law and the Texas Family Code, joint conservatorship is generally considered in the best interest of the child. That is to say, that is the default presumption. Here, the term conservatorship refers to custody. Visitation is itself a distinct concept entirely.
In cases where you don’t believe your former spouse is fit or qualified to manage a joint-custody arrangement, it is up to your lawyer to make that case. There are a number of reasons why a parent may be deemed unfit for conservatorship. The most likely reasons include:
- The parent has a history of physical or emotional abuse
- The parent has an active drug abuse or alcohol problem
- The parent is not currently economically capable of supporting a child
The appointment of sole custody is rare in Texas. An attorney who can successfully argue the unfitness of another parent or defend you from allegations of being unfit requires experience in Texas law.
Look for a Lawyer Who Will Help You Obtain Custody
Even when the court determines that joint conservatorship is best for the child, the question of where the child will live as a primary residence has yet to be decided. The custodial parent has a significant amount of power over the custody arrangement. They can pack up and move the children to another state or county without the non-custodial parent’s consent.
A good child custody attorney in Austin can help you establish a geographic restriction that prevents the custodial parent from moving your children away from you.
Look for an Attorney Who Can Help You Win Key Decisions
In most instances, Texas courts will find that neither parent is unfit enough to not share conservatorship. But the battle may not end there. If the parents can’t come to terms on a key decision, such as a where a child should go to school, then one parent may be awarded executive decision-making rights over a key domain.
Look for a Lawyer Who will Protect Your Interests – And Your Children’s
If you’re worried about what the court will decide in terms of your children or feel strongly that your ex-spouse is unfit for them, contact the Law Offices of Ben Carrasco at 512-320-9126 for a consultation today. We are prepared to assist you throughout each step of your case.
Schedule a Consultation with an Austin Child Custody Attorney
Ben Carrasco is committed to providing the best legal representation to our clients. Custody disputes are the most challenging in family law. If you are involved in this type of dispute, it is crucial that you hire the right Austin child custody lawyer who can present the strongest possible case.
We will work tirelessly to achieve the outcome that is best for you and, more importantly, for your children. To get immediate assistance with your case, please do not hesitate to contact our law firm today.
With an office in Austin, we represent parents throughout the region, including in Travis County, Williamson County, Bastrop County, Blanco County, and Hays County. Call or contact us online to speak with experienced lawyer Ben Carrasco.