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Perhaps the most contentious issue in a divorce is the matter of child custody.

Austin AttorneysWhen children are involved, parents try 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 the custody of a child depends greatly on the nature of the divorce and the decisions made by family courts.

The family law attorneys at the Evans & Herlihy Law Firm will serve as fierce advocates for your cause, making sure that you and your child’s interests are being represented.

When an Austin Child Custody Attorney is Needed in 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.

The seasoned and compassionate Texas family-law attorneys at the Evans & Herlihy Law Firm are here to help. We have extensive experience with and understand the stresses of divorce and custody disputes, and we recognize that children’s well-being is paramount.


The courts will consider several factors to determine “conservatorship” – the role and responsibilities of the parents. Courts consider the income generated by parents, the health of the parents, the child’s age and preferences, the child’s emotional and physical needs, the ability to provide a stable environment, any history of abuse or neglect, and the ability to provide overall care for the child, among other factors. 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.

These factors will determine whether parents have joint managing conservatorship (JMC) or whether one parent has sole managing conservatorship (SMC). 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. If a judge names both parents as joint conservators, he will also specify which responsibility each parent has separately as well as those they share jointly.

An SMC gives only one parent the legal right to make certain decisions for the child, including decisions about primary residence, medical treatment, and education. An SMC may also allow one parent to receive child support.

In Texas, child support is usually paid by the non-custodial parent until the child reaches 18 years of age, or longer if the child is disabled.


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, “access” has less to do with the decisions parents can make over the child’s care, and centers mostly on the amount of time each parent will be able to spend with the child. 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. In Texas, 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, Modified Possession Orders, Possession Orders for a Child Under 3, and Supervised Possession Orders – each with their own specified rules.

Under a Standard Possession Order, the parents can set whatever schedule they both agree on. If they can’t reach an agreement, 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.

A Modified Possession Order allows for any needed changes to be made to the Standard Possession Order. 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.

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 for the parents’ needs and school, work and social schedules.

Texas encourages parents to agree to share parental duties and the rights and responsibilities of their child. This is why parents are allowed to develop and create their own parenting arrangements and submit their parenting plan to the court.

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.

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. 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 laid out in the possession and access order.

When working on plans, it’s best to compromise and be considerate of the needs of your ex, 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).  Most often, the court will order the standard possession and access order, which is not usually the best solution.

When both parents make an effort to reach an agreement, it benefits the child and the parents.

At the Evans & Herlihy Law Firm, our first priority is the needs and wishes of our client. Contact us today to schedule a free appointment with our team.


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 access.

Texas law states, “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 …

(1)  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

(2)  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 …

(1) 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

(2)  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 shall 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.

In addition, there may be times when there may be restrictions on a child’s residence for geographic reasons.  Primary parents have the exclusive right to determine the primary residence, but their residence will 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.

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 today.

Visitation of Relatives

Relatives, most often grandparents, 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 family members. If both parents agree, you can make rules regarding which family members get to visit your child unless there is a court order against it. If you decide that certain family members should not have time alone with the child, the only way that family member can get visitation is to take the matter to court.

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…

  1. the order is necessary because the child’s present circumstances could impair the child’s health or emotional development; or
  2. 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 would be 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.

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 by showing a history of problems such as substance abuse or mental health issues.

Changes or Modifications to Custody Orders

If one parent believes that their living situation has changed 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) the point that courts should alter the original order.

For those that are considering a divorce and are concerned about a potential custody dispute, it is important to enlist the help of an attorney familiar with divorce and custody matters in Texas. An experienced 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 or considering modifications to your custody order, a child custody attorney 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

1) Relocation — Both parents often agree to a residency restriction at the time of divorce so that each has access to the child, but there are times when one 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 if the conservator needs to move close to his or her parents 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.

2) Petitions for Removal — It is very difficult for one spouse to remove a child from and terminate the parental rights of the other, if the other parent does not agree. Most often, there must be reasons such as serious drug addiction, abuse, or criminal activity to successfully do so.

If you are in a position where you feel your child is endangered and removal is necessary, you should have legal assistance with filing a petition for removal and termination. This involves the following steps:

  • Filing a petition to terminate the parental rights of the child.
  • Drafting an order that shows convincing evidence why termination of the parental rights is in the best interest of the child.
  • Writing an affidavit relinquishing parental rights that is signed in front of two witnesses and notarized.
  • Setting a date to bring the affidavit and order to the court and presenting the case to the Judge, and asking for termination.

Why Custody Disputes are Bad for Children

Parents who think they are benefiting their children by engaging in custody disputes may actually be subjecting them to irreparable harm. Custody battles 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 have to choose between their parents, who may even hate each other. 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 foster care.

Everyone suffers in a custody battle, so before embarking on one, parents should consider the damages they will 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.

Guardian ad litem

In any family law case, a minor often does not have a 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.

The Evans & Herlihy Law Firm is Here to Help        

We know there is nothing more important to you than resolving your custody issues and will make your case a priority by providing personal attention and advice through direct contact with the lawyers in our firm. There is no question or concern too small to be answered, and our Austin family law attorneys will keep you fully advised of the status of your case as it progresses.

We 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 can only make your situation worse, so contact us online or call our offices today.


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