28
May
2013

How Fathers Can Improve Their Chances of Getting Child Custody in Texas

Times have changed! Mothers’ having primary custody of the children is not always the accepted social presumption as in the past. Courts, legislatures and juries are becoming more aware of the vital necessity of father’s being involved in the lives of their children. Children with positive father involvement have fewer behavior problems, higher levels of sociability, and perform better in school.

Recent research suggests that father involvement is essential to a child’s social, moral, and physical growth during the adolescent period. A father’s involvement during pregnancy affects multiple areas of child development and family well- being, from prenatal care, to the likelihood that the father will provide ongoing financial and emotional support. This body of research is gaining momentum. Local and regional governmental agencies are focusing more and more on parental father involvement in the lives of children.

As a result of the continuing evolution of fathers’ rights, Courts are now recognizing a father’s ability to care for his children as an equal to that of the mother. Starting out on an equal plane, the Court may look to which parent is more stable, has a superior income, has a parenting plan in place for the child and is capable of providing proper child care and spending more quality time with the child.

As a father, how can you increase your chances of getting child custody in Texas? You must be a good father and spend time with your children by involving yourself in their daily lives. You need to be responsible and reliable to the needs of your kids. Know and participate in all aspects of their lives. This includes school activities, doctor’s appointments, extracurricular events and getting to know and bonding with their friends.

Reflect on your own personal experiences as a child growing up and think about what was really important to you and your parent’s interaction during that period.

If a father voluntarily gives up rights to his children based on prejudices of the past in the Court system, he will feed a mother’s confidence and sponsor unnecessary ongoing litigation. The number one mistake made by fathers in the court system today is a failure to take the time to learn how the system works. Failing to learn how the family law system works may doom your case. Once you have learned the ins and outs of the family law system you will need to form a viable plan, set goals and never relent in enforcing your rights as a father.

Five of the biggest mistakes men make in a legal action are: 1) failing to respond to the legal action itself; 2) obtaining incorrect legal advice (from friends and family rather than a legal expert); 3) signing a settlement agreement that is not in agreement with and later deeply regretting it; 4) failing to perform under the actual settlement agreement signed; and 5) getting frustrated and/or acquiescing to unreasonable demands and orders.

Some of the things you may want to consider as you prepare for the custody battle are as follows:

  1. Who has the financial ability to best care for the child(ren)? Be sure to have income tax verification, W-2 Forms and other financial information available.
  2. Form a parenting plan (child care, after school care, transportation, pediatrician, etc.).
  3. Who is more stable and/or can provide the best home for the child (ren)?
  4. Where has the child (ren) been attending school? Is it possible to keep the child in the same school district?
  5. Prepare a chronology of events leading up to the divorce including treatment of the child(ren), time spent with the child(ren), activities with the child(ren), the child(ren)’s schedule.
  6. Consider if a home study should be prepared regarding each home of the child.
  7. Consider whether a psychological evaluation should be done on the mother?
  8. Is drug testing necessary? (Be sure to request hair follicle drug testing.)
  9. Is there an alcohol or other addiction problem in the home?
  10. Who can provide the best moral upbringing for the children?
  11. Is there evidence such as pictures, video tapes, etc. that may help your case?
  12. Avoid unnecessary compromising photos or data on Facebook or other social networking sites.

List any other relevant issues you feel may be important to your child custody case before you meet with an attorney about your rights as a father.

3
Dec
2012

Modification of Child Custody or Visitation Rights for Texas Fathers

Texas family law states that a court may modify a child custody order if the change is in the best interest of the child and one of the following applies:

1. The circumstances of the child or parent have materially or substantially changed since the date of the original child custody order or order to be modified.
2. The child is at least 12 years of age and will tell the court in private chambers with the judge that he/she would like a change.
3. The custodial parent has voluntarily given the child’s care and custody to another person for at least 6 months.

Material or Substantial Change
What could be acceptable as a change for the Texas family courts? Some examples could be a parent’s remarriage, a medical condition the affects a parent’s ability take care of the child, a parent’s criminal acts or convictions, a parent’s change in residence that makes visitation a hardship for the other parent, family violence, drug or alcohol related issues, absence of supervision, and other material changes concerning adequate care and supervision of the child.

Child Wants Change
The child must be at least 12years of age and maybe interviewed in the judge’s chambers. The court will consider the child’s desire but only make a change if it is in the child’s best interest.

Custody Relinquishment
This happens when the custodial parent has voluntarily given up custody of the child to another person for at least six months. This does not apply to a period of military deployment or duty.

After finding one of the three prerequisites, the court must still consider whether the change will be in the child’s best interest. The court will consider factors affecting the child’s physical, emotional, mental, education, social, moral or disciplinary welfare and development. The factors considered for this evaluation are:

1. Child’s emotional and physical needs.
2. Parenting ability of the conservators or potential conservators
3. Plans and outside resources available to persons seeking the modification
4. Value to the child of having a relationship with both parents
5. Visitation schedule that requires excessive traveling or prevents the child from engaging in school or social activities
6. Stability of the person’s home seeking the modification
7. The child’s desires
8. Child’s need for stability and need to limit additional litigation in child custody cases.

Modification within one year of prior court order
A parent who files a motion to modify a child custody order within one year after a prior order was entered must also submit an affidavit to the court. The affidavit must contain, along with supporting facts, at least one of the following allegations:

1. The child’s present environment may be endanger the child’s physical health or significantly impair the child’s emotional development.
2. The person who has the exclusive right to designate the child’s primacy residence is the person seeking or consenting to the modification and the modification is in the child’s best interest.
3. The person who has the exclusive right to designate the child’s primary residence has voluntarily relinquished the primacy care and possession of the child for at least six months and the modification is in the child’

1
Nov
2012

Going Through a Divorce with A “Special Needs” Child in Texas

Going through a divorce can be a difficult time for all family members, including the children. The stress of dealing with a child that has a serious illness or difficulty prior to the initiation of a divorce may accelerate during the divorce process. We call such a child the “Special Needs Child”. This child has apparent or diagnosed emotional/medical problems.

Special Needs children are seriously impacted by the decisions made during a divorce. Many times the child becomes more vulnerable not knowing with is happening but very afraid of losing mom or dad forever and causing additional emotional and behavioral problems at home. It is important for parties to determine how meaningful regular visitation will be accomplished and which parent will have the right to make major decisions on how to address the child’s emotional and medical needs. During a divorce, most parents have difficulty agreeing on issues, especially issues related to the problems associated with a “special needs” child.

I. Child with Emotional Issues:

Children will always experience some level of negative emotions during the divorce process, even in the best circumstances. When a child has a mental illness or emotional problem, how visitation periods are managed, who has the authority to make a decision on medical treatment and therapy and how such decisions will be followed and enforced in each parent’s household will greatly affect the success or failure of the final decree as it pertains to the child. It is very important to have an order that is flexible and meets the child’s changing needs, yet remains enforceable should action need to be taken due to a parent’s failure to meet the needs or comply with the court’s order.

Three of the most reported emotional and behavioral issues involving children are Attention Deficit Hyperactivity Disorder (ADHD) Behavioral or Conduct Disorders, Oppositional Defiant Disorder (ODD), and chemical addictions.

2. Special Medical Needs

When a child has significant medical health problems or disabilities parents may have very different opinions on who should be the decision maker regarding doctors, medications and regimens for a particular situation. This may be compounded by the emotions and breakdown in the marital relationship often caused by the stress and differing opinions of the parents on the care of the child. The Court must help to balance the needs and rights of the parents so that each has a voice in their child’s treatment decisions. It is also important that the parties along with the Court work for a consistent treatment protocol to meet the child’s medical needs and best interests.

The real battleground in custody cases becomes the allocation of rights and duties between the parties. This is exacerbated when the child involved has emotional or medical needs. Other factors that may compound issues are 1) other children involved and 2) whether they also have special needs. Major problems occur when there are differing views between the parents on how to best treat the problem or a lack of consensus among medical and mental health professionals as to the appropriate protocol for treatment and uncertainty among family courts as to which protocol
to “impose” upon the family.

Texas Courts vary greatly on how each allocates rights and duties, even in joint managing conservatorship situations. In the event the parties cannot agree on the allocation of rights pertaining to educational and medical decisions the courts must award custody based on the principle of what is the best interest of the child. The Court will consider many factors in developing a parenting plan including the development status of the child, the child’s temperament, and each child’s specific needs.

To make a meaningful decision on the care of the child, the court will need evidence of the following:

• Which parent is the most involved in the decision making as pertains to the relevant issue?
• What are the competing theories of how to best treat the child?
• Current opinions from the child’s physician and /or therapist.
• What is the generally accepted treatment for the specific condition?
• What is the likelihood of each parent following the protocol selected by the court?
• How successful has the treatment been in the past?
• What are the attitudes of the parents in relation to considering alternative methods if the current situation doesn’t work?
• Which parent has shown a proven effort at recognizing the child’s needs and working to address them?

The selection of a reputable expert in the particular field in which the child is affected is paramount to a true evaluation of the situation. Not all doctors and therapists are created equal and the expert must be a specialist in working with the child’s specific problem.

After the divorce is concluded, raising a special needs child requires a high degree of collaboration between both parents. This child feels very afraid and doesn’t have to be put in the middle of a parental alienation feud which could cause long term mental and physical scarring for both the child and the parents. Parents, think about your child! Your child didn’t ask for a divorce but they will have to live with the consequences, good or bad, that your decisions leave them!

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