Divorce can be a messy, emotional process, but it becomes even more challenging when child custody is involved. Divorce with custody cases are highly sensitive, as both parents typically want to spend as much time as possible with their children after the divorce.
The Difference Between Legal and Physical Child Custody
When it comes to custody of the children, it is important to understand that there are two separate and distinct types: legal and physical custody. In most child custody cases, both parents share legal custody, which involves the ability to make decisions about the welfare of your child or children. This includes where your child goes to school, what religion he or she is, or the type of medical care that he or she receives. Physical custody refers to where the child lives, and is most often at issue in divorce with custody cases. In some cases, parents are able to split custody, while in other situations, one parent has primary physical custody. If you are divorcing and have children, we can work with you to help you understand your rights to both legal and physical custody.
The Best Interests of the Child Standard
For many parents, the first question that they ask is how a judge will determine who will get primary custody of their child or children. In a divorce with custody or any other child custody case, the standard is the best interest of the child. In other words, the court will look to what is in each child’s best interest in order to make a custody determination. This often involves evaluating a number of factors, such as the home environment of each parent, whether the parents can co-parent successfully, the distance between the parents’ homes, each parent’s ability to be a caretaker to the child, the financial and employment situation of each parent, and if the child is old enough, the child’s opinion. Unless child abuse is involved or other factors are present, most courts will attempt to award approximately equal time to each parent in a divorce with custody case. There may be scenarios where this isn’t possible, however, such as when the parents do not live close together, or where one parent works long hours.
While the “best interests of the child” standard is a subjective one, it ultimately means what is the most ideal situation for the child given the divorce. In Texas, courts will presume that unless there has been child abuse or neglect, it is best for a child to maintain a relationship with both parents whenever possible.
When Can a Child Give His or Her Opinion about Custody?
Under Texas law, a child has the right to testify to the court about which parent he or she would like to live with when he or she is 10 years or older. However, a child’s opinion about child custody is just one factor that a court will consider in a divorce with custody case. As a Houston child custody attorney can explain, a Texas court will still consider other aspects as part of the overall best interests of the child determination.
Parenting Plans for Child Custody
A parenting plan is a necessary component of any divorce with custody case. This document sets forth the rights and duties of each parent regarding his or her child or children. This may include information such as the primary residence of the child, making decisions about health care and schooling, paying child support and more. If spouses involved in a divorce can agree to a parenting plan before starting the divorce process, it will simplify the custody determination. Our Houston child custody attorney can work with you and your spouse’s lawyer to help formulate a parenting plan that works for both parties.
Child Custody and Child Support
In divorce with custody cases, many parents are curious about how child support payments relate to child custody. Child support payments are determined by on a number of factors based on the child’s needs. Typically, the parent who has primary physical custody of a child will receive child support from the non-custodial parent. We can help you determine how child custody may impact your child support obligations.
*Read this article about “How Child Support is Calculated in Texas“.
The Role of Mediation
Increasingly, more parents in divorce with child custody cases are taking advantage of the mediation process as a way to resolve their issues without the time and expense of a full-blown trial. Mediation is a non-binding process where a neutral third party, known as a mediator, helps a couple decide the details of their divorce. In many cases, the parties are represented by child custody attorneys. A qualified mediator can help a divorcing couple come to a decision about the sticking points in their divorce — such as on child custody and support — by offering an outside opinion on the strengths and weaknesses of their case, along with guidance on how a court might rule on various issues.
If you are contemplating a divorce that will involve child custody issues, you will need an experienced Houston child custody attorney to represent you. Divorce with custody cases can be complex, and a seasoned lawyer can shepherd you through the process. Contact our office today and schedule an initial case consultation.