How Does the Court Decide Who Gets Custody in Divorce?

How Does the Court Decide Who Gets Custody in Divorce

When it comes to Child Custody Laws in Texas, determining the best interests of the child is the primary focus during a contested divorce. That means that when the court will consider evidence relating to a variety of factors including physical and emotional needs, especially in consideration of any past or potential physical and emotional danger. During these considerations, discussions of the stability of both parents homes, plans for the child, cooperation between parents, level of parenting skills, who the child’s primary caregiver will be and so on will be of great importance.

While in most states the legal rights and responsibilities that a parent owes to a child is called child custody, it is known as conservatorship in Texas. Parents are custodians, and the custodian of a child is known as the conservator. Unless both parents agree on a plan of custody, a family law court makes the final decision on the terms of the conservatorship.

With both joint and sole custody, there are two types of conservatorship in Texas: Joint Managing Conservatorship (JMC) and Sole Managing Conservatorship (SMC). The conservatorship agreement will outline the rights and responsibilities that each parent will have under Texas law after the divorce is finalized. A judge decides on the nature of the conservatorship based on all kinds of factors.

Factors influencing the judge’s decision include the following:

  • Parents with a history of family violence or neglect
  • Parents with a history of drugs/alcohol abuse or criminal activity
  • Parents have been absent in a child’s life
  • Parents with a history of conflict (education, religion, etc.)
  • Protecting Your Custodial Rights as a Parent

In an agreed divorce, parents may be granted custodial rights in a Joint Managing Conservatorship. However, if a parent is shown to be an unfit custodian, they may lose rights to conservatorship and the judge may grant SMC to the other parent.

Conservatorship often includes rights to the following:

  • Obtain health, education, and welfare information from other parent
  • Access to medical, dental, psychological, and educational records
  • Ability to speak to physicians, dentists, and psychologists for the child
  • Consulting school officials on child’s welfare and educational status
  • Give consent to medical, dental, and surgical treatment in emergencies

However custodial rights’ are up to the judge in the end. You may have rights that you feel are deserved and agreed upon, but the judge is the one that grants the rights in the end. You need to be able to make your case for the positive and healthy, stable parent and home you will provide for your child’s life.

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