Austin Child Custody Attorney
An Austin child custody attorney at the Evans & Herlihy Law Firm will serve as a fierce advocate for your cause, making sure that your and your child’s interests are being represented.
Perhaps the most contentious issue in a divorce is the matter of child custody.
When children are involved, parents usually attempt to strike a balance between independence from their former spouse and maintaining a relationship in which both parents can have a meaningful connection with their children. Every situation is different, and if parents do not agree, the courts may have to get involved. The ultimate arrangement for the custody of a child depends greatly on the nature of the divorce (or the relationship of the parents or they are unmarried), the issues involved, and the decisions made by family courts.
When an Austin Child Custody Attorney Is Needed for Child Custody Cases
In an ideal world, parents who are divorcing should be able to negotiate and come to an agreement as to custody and visitation issues, and the well-being of the child should come first. Unfortunately, this does not always happen, and conflicts over child custody can lead to a contentious court battle that is damaging to all parties.
Texas child custody law is complicated, but you do not have to navigate the legal hurdles of fighting alone for your rights and those of your child. The seasoned and compassionate Austin child custody lawyer at the Evans & Herlihy Law Firm is here to help. Our team has extensive experience with and understands the stresses of divorce and custody disputes; we know how the courts operate; and we recognize that children’s well-being is paramount.
We offer a free consultation to discuss the facts of your individual situation, answer your questions and concerns, and show you how we can help. Call our child custody lawyer in Austin today at (512) 732-2727.
Why Custody Disputes Can Be Bad for Children
Parents who think they are benefiting their children by engaging in contentious custody disputes may actually be subjecting them to irreparable harm. Custody battles can destroy the parents’ relationship with each other and ruin the chances they will be able to cooperate and co-parent in a manner that is in the child’s best interests.
Children are caught in the middle and may be put into a situation where they feel that they have to choose between their parents, who may not even be able to get along or communicate. This creates stress and damages the children’s sense of security and self-esteem. Often, children wind up blaming themselves and wondering what is wrong with them.
Parents who put children in the position of having to choose between them create children who may wind up being unable to form fully functional relationships with either parent. Children may resent and withdraw from their parents, creating long-term repercussions. If the accusations in the dispute become vicious enough, a judge might find the child could be endangered by both parents and may even order the children to be placed in the custody of a third party.
Everyone suffers in a custody battle, so before embarking on one, parents should consider the damage they may create. Unfortunately, things don’t always go smoothly when custody matters become contentious. If you want an Austin child custody attorney to review your case, contact the Evans & Herlihy Law Firm today.
Austin Child Custody Lawyer Explains Conservatorship – A Key Term for Parents
In dealing with child custody matters, Texas has specific terms, different from the terms used by other states, that talk about “custody” and “visitation.” Texas courts refers to the parent or guardian of a child as a “conservator,” and the amount of time a parent spends with the child as “access.”
The courts will consider several factors to determine “conservatorship” – the role and responsibilities of the parents. A conservator can have the right to inquire, participate in and make decisions regarding the child’s education, health, after-school activities, what religion the child practices, and legal needs.
Some factors the courts consider when they determine conservatorship are:
- The ability to provide overall care for the child;
- The ability to provide a stable environment;
- The child’s emotional and physical needs;
- The child’s age and preferences;
- The health of the parents;
- Any history of abuse or neglect.
The court cannot consider the parent’s marital status or the sex of either the parent or the child as a factor in determining conservatorship. If you have questions about how these factors can impact your custody agreement, we are here to help. Our child custody lawyer can explain any part of the conservatorship determination and process.
Types of Conservatorship
Texas courts will consider many factors in deciding which of several options for conservatorship to use when issuing a custody order. The factors will determine whether parents have joint managing conservatorship (JMC), or whether one parent has sole managing conservatorship (SMC).
- JMC — In a JMC arrangement, both parents share the rights and responsibilities of a parent; however, a judge may still award the exclusive right to make certain decisions to one parent only within a JMC. If a judge names both parents as joint conservators, he will also specify which responsibility each parent has separately or exclusively, as well as those that they share jointly. One party may receive child support under a JMC.
- SMC — An SMC gives only one parent the legal right to make certain key decisions for the child, including decisions about primary residence, medical treatment, and education. An SMC may also allow one parent to receive child support.
Texas courts prefer parents to be named as JMCs and to share as equally as practicably possible in the custody of a child unless there are situations of parental misconduct, such as neglect, domestic violence, or abuse. The courts encourage parents to reach a joint conservator agreement on their own, or through negotiations between the parties, lawyers, and/or through the mediation process. Our child custody attorney can provide help at this stage. If this is not possible, the courts will consider factors that include:
- The ability of the parents to give first priority to the best interests and welfare of the child;
- The ability to effectively co-parent and make shared decisions that reflect this best interest;
- Whether each parent can encourage and accept a positive relationship between the child and the other parent;
- The extent to which both parents participated in raising the child to date;
- The physical distance between the parents’ homes;
- The child’s preference, for a child age 12 or older;
- Parental behavior prior to and during the court proceedings.
If a parent is unfit, a sole custody or sole conservatorship will be granted to the other parent who will have sole managing conservatorship over the child.
Child support is usually paid by the non-custodial parent until the child reaches 18 years of age and graduates from high school, or longer if the child is disabled, in both JMCs and SMCs.
Our Child Custody Attorney in Austin Explains Parental Access
Texas courts will often consider many of the same factors when deciding the level of access each parent has to the child. As opposed to conservatorship, which has to do with the decisions parents can make regarding the child’s care, “access” centers mostly on the amount of time each parent will be able to spend with the child. In determining access, the courts will also consider the wishes and agreements of the parents.
The custodial parent has the legal right to decide where the child will live, but the noncustodial parent has the legal right to spend time with the child and know the whereabouts of the child.
Physical custody means “possession.” In Texas, the phrases “possession of” and “access to the child” are used instead of “custody” and “visitation.” Parents have possession of a child when the child is with the parent. A possessory conservatorship gives a parent the right to access and visit the child but not necessarily the authority to make legal decisions for the child.
Not only are the terms related to child custody in Texas confusing, negotiating the best outcome for the children and parents can be a challenge. Our Austin child custody lawyer understands the details of Texas law and will make sure the best interests of your child and your rights as a parent are protected.
The rights each parent has in relation to the time spent with a child are determined by “possession orders.” There are several types of possession orders – Standard Possession Orders, Expanded Standard Possession Orders, Modified Possession Orders, Possession Orders for a Child Under 3, and Supervised Possession Orders – each with their own specified rules.
- Standard Possession — If the parties can’t reach an agreement as to their respective periods of possession of the child, Texas courts will often, but not always, impose a “Standard Possession Order,” pursuant to which the non-custodial parent has the right to possession the first, third, and fifth weekends of every month; Thursday evenings during the school year; alternating holidays; and 30 days during the child’s summer vacation. If the parents live more than 100 miles apart, the schedule may change accordingly. In this case, the non-custodial parent is sometimes only entitled to one weekend per month, and the summer visitation period increases to 42 days.
- Expanded Standard Possession – This is similar to the Standard Possession Order but allows for an additional overnight period of possession for the non-custodial parent, and allows that parent to pick up and drop off the child at school during the school year.
- Modified Possession – A Modified Possession Order allows for any needed changes to be made to the Standard Possession Order, or be customized according to the schedules and circumstances of the parents and children.
- Possession Orders for a Child Under 3/Supervised Possession – Special considerations may apply if the child is under 3 or if a judge’s concern for the child’s safety leads to an order for supervised possession.
Due to factors such as parental home distance, transportation issues, and demands of job hours, joint conservatorship or true joint/equal physical custody can sometimes be difficult. As a result, joint managing conservatorship is often granted so both parents equally share in making the child’s legal decisions, but the child lives primarily with one parent while the other has possession rights.
All these decisions need to be made while considering the best interests of the child. A skilled child custody attorney can help you understand which type of possession order applies to and best suited for your custody needs and wishes.
Best Interests of the Child in a Child Custody Order or Agreement
Section 154.004 of the Texas Family Code describes the “best interests of the child” standard. The court evaluates the home environment each parent offers, the distance between the parents’ homes, each parent’s ability to serve as the child’s caretaker, whether the parents can work together in raising the child, each parent’s financial circumstances, each parent’s employment situation (including travel and work hours that might limit the parent’s availability) and in some cases, the child’s preference as to which parent they prefer to live with primarily if the child is at least 12 years old.
Dealing with custody issues can be complex because the court considers so many factors when making decisions. The Austin child custody attorney at Evans & Herlihy can help you understand these issues and increase the chances that decisions will be made to benefit you and your children.
In some counties, Texas courts will require that divorcing parents with minor children take a co-parenting class before they are granted a divorce. This is to help parents and children deal with the trauma of divorce and separation. Both parents must complete this requirement, unless a waiver is granted, and the class can usually be taken in person or online.
In Some Cases, Reaching an Agreement Is the Best Option
It is always best if parents can reach an agreement based on the best interests of the child, with consideration given to the parents’ needs and school, work and social schedules. Texas encourages parents to agree to share parental duties and the rights and responsibilities of raising their child. This is why parents are allowed to develop and create their own parenting arrangements or “parenting plan,” and submit their proposed agreed order to the court. It is up to both parents to come up with an acceptable possession and access schedule that sets down when each parent has time with the child. If possible and when appropriate, your schedule should provide the child with frequent contact with both parents and opportunities to develop a close relationship with both parents and with the other children in the family.
If you can agree, you then submit the schedule to the court, which will approve it if it is in the best interest of the child or ask you to revise it. Once approved, the schedule is part of your parenting plan and is set out in the possession and access order.
When working on plans, it is best to compromise and be considerate of the needs of the other parent, as you both know your children better than the courts do. If you cannot come to an agreement, the court will make a plan for you, and you will be legally obligated to follow the plan (TFC ¶153.007.b). In many instances, the court will order the standard possession and access order, which is not often the best solution. When both parents make an effort to reach an agreement, it benefits both the child and the parents.
At the Evans & Herlihy Law Firm, our first priority is the needs and wishes of our client. Contact our child custody lawyer in Austin today at (512) 732-2727 to schedule a free appointment with our team.
Restrictions on Access in a Child Custody Case
Although the courts prefer that children maintain a close relationship with both parents, there are times when, for the safety of the child, it is necessary to restrict a parent’s access to the child.
Protecting a Child’s Safety in a Custody Case
Texas law states that “the court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault…that results in the other parent becoming pregnant with the child.”
Also, the court may not allow a parent to have access to a child if evidence shows that…
- there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the suit; or
- the parent engaged in conduct that constitutes an offense under the Penal Code that resulted in the victim’s becoming pregnant.
However, parents may still be allowed access to a child if the court…
- finds that access would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child; and
- renders a possession order designed to protect the safety and well-being of the child and anyone who has been a victim of family violence committed by the parent.
The court may also require that time with the child be continuously supervised, that the exchange of the child occur in a protective setting, that the parent abstain from the consumption of alcohol or a controlled substance within 12 hours prior to access to the child, or that the parent attend and complete a battering intervention and prevention program.
A parent may not have unsupervised visitation with the child if there is credible evidence of past or present child neglect or abuse or family violence by the parent or any person in that parent’s household permitted to have unsupervised access to the child.
The court must also take under consideration whether there was a protective order against the parent or other person during the two-year period before the filing of or during the suit. To ensure your children are protected, talk with a child custody lawyer at Evans & Herlihy to understand how Texas Law applies to your custody arrangement.
How Restrictions on Parental Residence Can Impact Child Custody
In addition, there may be times when there may be restrictions imposed on a child’s residence for geographic reasons. Primary parents have the exclusive right to determine the child’s primary residence with them, but their residence can be restricted so that the child can have close and continuous contact with both parents. However, if the other parent moves outside the restricted area, the restriction is lifted, since the restriction is to allow the non-custodial parent convenient access to and ability to participate in the child’s daily life. The scope of the primary parent’s geographic restriction can often be negotiated and agreed upon by the parents.
Understanding the complexities of Texas child custody law isn’t easy. If you have questions and want to speak to a child custody attorney in Austin, we encourage you to contact the Evans & Herlihy Law Firm at (512) 732-2727 today.
Child Custody and Visitation of Relatives
Relatives, most often grandparents and aunts and uncles, often wish to have time with a child. When relationships are cordial and both parents agree, this may be worked out to everyone’s satisfaction. However, problems often occur when the parents are hostile to each other or to the relative requesting visitation.
In Texas, you are not legally obligated to allow visitation to other family members independent of their time with the child when with the other parent. If both parents agree, you can establish agreed upon rules regarding which family members get to visit your child unless there is a court order against it. If you decide that a certain family member should not have time alone with the child, the only way that family member can get visitation is to take the matter to court and request that they be formally named a conservator of the child.
If close relatives want managing conservatorship of the child, Section 102.004 of the Texas Family Code states that they may file an original suit requesting this by proving to the court that…
- the order is necessary because the child’s present circumstances could impair the child’s health or emotional development; or
- both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.
Because Texas is a strong parents’ right state, this is usually hard for a relative to prove, especially if both parents do not want the relative to see the child. If parents do not agree, it will still be hard for the relatives to get court-sanctioned visitation time. However, one parent may give some of their time to the family member, in many circumstances.
Even if parents disagree, they may negotiate an agreement that limits the relative’s visitation by not allowing them to babysit, have one-on-one time with, or use alcohol or drugs around the child. If parents still disagree, they may have to go to court to prove why the relative should not have contact with or access to the child by showing a history of problems such as substance abuse or mental health issues. Custody cases are complex enough when just the parents are involved. Once relatives also need to be considered in custody agreements and orders, it may be best to seek guidance from an experienced child custody lawyer who can explain all options available to family members.
Changes or Modifications to Existing Custody Orders
If one parent believes that their living situation has changed since the entry of the last order to a degree that warrants a change in custody, they can seek a modification of custody orders. It will be up to the parent seeking changes to prove that either or both parents’ situations have improved (or deteriorated) or that the situation of the child has changed to the point that courts should alter the original order.
For those that are considering a modification of existing custody orders and are concerned about a potential custody dispute, it is important to enlist the help of an attorney familiar with custody modification matters in Texas. An experienced child custody attorney will be able to give you legal advice that positions you for a successful pursuit of the custody of your child.
If you are in the process of a divorce, are establishing parentage and custody, or are considering modifications to your existing divorce decree or other custody order, an Austin child custody lawyer at the Evans & Herlihy Law Firm can help. We will evaluate your case to determine your best course of action. Contact us today to learn more.
Relocations, Petitions for Removal
Relocation and Changes in Residency Restrictions of a Child Custody Agreement
Both parents often agree to a residency restriction at the time of divorce so that each parent has access to the child, but there are times when one parent later seeks to have the restriction lifted or modified because of a substantial change in circumstances. After divorce, parents’ lives change, and one may wish to relocate for reasons such as the parent needing to move close to his or her parents or other family to help care for the children, or to move for a job that pays more, or due to a new spouse’s career.
Once residency restrictions have been agreed upon at the time of divorce, it is harder and more expensive to lift them, especially if the child has been established in a school, with friends and activities. If parents cannot agree on whether to allow the relocation, the courts may have to decide.
Often the courts will allow a parent with the exclusive right to determine primary residence to relocate if that parent has a good reason to move and can propose a reasonable plan for visitation between the child and the other parent.
Guardian Ad Litem
In any family law case, a minor often does not have their own legal representative unless the court appoints a guardian ad litem to represent the minor child’s interests. The court can appoint either a guardian ad litem, who does not have to be a lawyer, or an attorney ad litem, or one person to handle both roles.
Attorneys act as advocates for a child’s position in court, and a guardian acts as a witness as to what is in the best interest of the child.
The appointed person will investigate the case and determine the child’s wishes, if possible, by interviewing the involved minor, the parties, and any witnesses. The person must always represent the best interest of the child in Family Law Court and may have to prepare written reports or testify at trial in contested cases. Our child custody attorney can explain how the roles of a guardian ad litem and an attorney ad litem may impact your custody case. Don’t hesitate to call us for help if you have questions.
Child Custody Lawyer in Austin, Texas –The Evans & Herlihy Law Firm Is Here to Help
At Evans & Herlihy, we know there is nothing more important to you than resolving your custody issues. We will make your case a priority by providing personal attention and advice through direct contact with the Austin child custody lawyer in our firm. There is no question or concern too small to be answered, and our attorneys will keep you fully advised of the status of your case as it progresses.
Our family law attorney will make every effort to settle your case without going to court, but we are fully prepared to go to trial and aggressively fight for you and your children if necessary. We offer a free initial consultation to examine your individual situation and help you understand your specific child custody options.
Delaying may only make your situation worse, so call our child custody lawyer in Austin at (512) 732-2727 today to start getting the help and advice you need.