If you have children and are going through a divorce, the issue of child custody is likely the most emotionally-charged element of your divorce. While you want what’s best for your children, you also don’t want to lose any time with them or lose the right to help make decisions for them. The custody battle can cause fear in many divorcing couples, but if you take the time to educate yourself on the process, you’ll be much better prepared and more likely to get a better outcome in your divorce.

Each child custody case is unique, but all are guided by similar factors.

Who Makes the Decision?

Child custody decisions can be made by either the divorcing couple or by the court. In many cases, the couple can agree on child custody terms in informal settlement negotiations, often with the help of a family law attorney. They can also use mediation (often with an attorney’s help) to reach decisions together.

If the couple can’t agree to the terms regarding child custody, a judge or jury (in Texas, a jury can decide which parent will have primary custody) will evaluate the situation and make a decision. When child custody decisions go to court, the decision is unpredictable, but the judge does follow a standard of evaluation and makes a decision based on what he or she believes to be in the best interest of the child.

What Factors Influence the Decision?

How do you make a decision on who should have custody or how a couple should share custody? With a decision this emotional, it can be difficult to separate your own opinions and biases about your spouse from the well-being of your child. These questions can help you and your spouse come to an agreement, and they are also used when a judge makes a decision:

  • Who is the primary caregiver of the child?
  • What scenario will be in the child’s best interest?
  • What is the child’s preference?

What Does “Best Interest” Mean?

The “best interest of the child” standard is used by every court in the country. But what exactly does this mean? Well, it’s a little complicated. Not every state uses the same definitions of the standard, and specific details are not always laid out. Generally, however, the “best interest” standard attempts to find the best mix of factors for the child’s overall happiness, physical and emotional welfare, and security.

This often means that the parent who has spent the most time caring for the child receives more custody rights. In addition, moving a child out of a home is not something judges are quick to do, and so the parent living in the family home often has a bit of an advantage in gaining custody. This decision also takes safety and security into consideration.

How Much Weight Does the Child’s Wish Carry?

Some judges will listen to the wishes of the child, especially if the child is a teenager. Younger children’s wishes receive less weight in the final decision. Ultimately, however, the judge will decide in favor of the child’s best interest, which won’t always necessarily correspond with the child’s wishes. In Texas, a parent has the right to file a motion to confer with the child, which is a motion requesting that the judge meet with the child in chambers to determine the child’s wishes regarding custody. If the child is at least 12 years of age or older, the judge is required to confer with the child if either parent files a motion to confer. If the child is under the age of 12, however, the judge is not required to confer with the child but may do so at his discretion.

What If the Parents Are Unmarried?

If the parents are unmarried, either parent can file what is called a suit affecting the parent child relationship to establish terms for conservatorship, possession, and support of the child. In the absence of such an order, both parents have equal rights to the child, which means that either parent can deny the other parent access to the child. Moreover, without such an order, child support cannot be established and collected on behalf of the child.

Can A Relative File for Custody?

Yes. Typically, this is done by the child’s grandparents. However, it is exceedingly difficult for a nonparent to gain custody of a child over the child’s parents. A nonparent must establish that both of the child’s parents are a danger to the child in order to be awarded custody.

Child Custody Is Difficult

The decisions surrounding child custody are difficult for even the most agreeable divorcing couple. Get help with the process by using a trusted child custody lawyer. Ben Carrasco is an experienced family law attorney who works hard to help you get what you deserve.

About the Author
Ben Carrasco is a highly skilled family law attorney based in Austin, Texas, known for his extensive expertise in family law and business litigation. While his primary focus is family law, Ben brings a wealth of experience in litigating diverse business disputes, ranging from breach of contract and collections to business torts, fraud, and real estate matters. In his family law practice, Ben navigates all aspects of the field, including divorce, child custody, support, property division, and more, offering clients expert guidance throughout the litigation process. His legal journey began in complex commercial litigation, initially with a global law firm and later with a prominent Austin-based firm. However, driven by a desire to make a direct impact on people's lives and embrace the human element of the law, Ben transitioned to family law, a decision that has proven to be deeply rewarding. A proud Austin native with roots in California, Ben completed his undergraduate studies at the University of California, Berkeley, before earning his law degree at Stanford Law School, where he excelled in legal writing and served as an associate editor of the Stanford Law and Policy Review.