Children don’t typically grow up in isolation. In a child custody case, there can be a large cast of players affecting the outcome. Child custody is one of the most contentious areas of family law. Most parents want custody and possession of, and access to, their children and are willing to do just about anything to get it. One of the experienced child custody lawyers from Orsinger, Nelson, Downing & Anderson can help get the results you need in court by skillfully addressing all areas of concern.
- Best Interest of the Child
- Child Custody (Conservatorship)
- Sole Custody
- Joint Custody
- Primary Custody
- Collateral Witnesses
- Mental Health Testimony
- Contested Custody
BEST INTEREST OF THE CHILD
In a child custody dispute, the court’s number one objective is determining what’s in the child’s best interest concerning how the parent-child relationship will be constructed going forward. The court will make a determination with respect to custody, starting with whom it designates as “conservators” of the child.
“Conservatorship” is a term that Texas courts use for a person with rights and duties with respect to a child (including a right to possession). It’s typically a parent of the child. In fact, most judges favor placing a child with their natural mother or father before considering other options. There are exceptions to this, because sometimes the natural parents of the child are addicted to drugs or alcohol, or have a history of violent behavior.
Sometimes there are instances when a conservator could be someone else – a grandparent, an uncle, etc. Therefore, the courts of this state use the nomenclature “conservator” because it could represent a broad group. Grandparent custody is more common than some might think, and uncles, aunts, cousins, and even siblings are also eligible for custody (conservatorship) of a child.
STEREOTYPES IN AWARDING CUSTODY OF A CHILD
Often when it comes to matters of child custody, we still see things through a prism of past stereotypes and dated social norms. People may think that because women carry a gestational burden and frequently follow a gender role norm as “nurturing caretaker” for a child, they would be the party “always” awarded the greater share of rights and duties respective to the child.
That notion runs counter to statute. Pursuant to the Texas Family Code, the courts are to make their determinations without regard to sex or marital status.
Here’s another myth to dispel: When you watch TV or movie dramas, you will often hear a character state something along the lines of: “I fought for sole custody.” Well, in Texas, “sole managing conservatorship” is something that could happen, but it’s not as common as joint custody. Sole managing conservatorship provides that one parent has the right to designate the primary residence of the child, make educational decisions, consent to medical treatment of the child, etc., all to the exclusion of the other parent. That means the other parent doesn’t get a voice in such important decisions.
SOLE CUSTODY AND JOINT CUSTODY
In Texas, it’s presumed that both parents are to be designated as “joint managing conservators.” However, the needle concerning that presumption may move based on the evidence presented to the court. What this means is that courts in Texas view each parent as having important input to decisions relating to the child.
Regarding “the best interests of the child,” as identified above, the court may limit the rights of a joint managing conservator, such that one conservator’s rights are more significant than the other. For example, the court may simply find that one parent is especially attuned to the educational needs of the child, and award that parent the exclusive right to educational decision-making. Another example is that one parent may be a medical doctor. That parent may, by way of their professional training and experience, demonstrate that it would be in the child’s best interests if they had a superior right to make decisions with regard to the child’s health care treatment.
The biggest issue related to conservatorship tends to be when a conservator is determined by the court to be the “joint managing conservator with the exclusive right to designate the primary residence of the child” (i.e., which parent is designated as the child’s home base). This may play a factor in possession (or visitation) of the child, but it won’t necessarily determine what that possession will look like.
In framing the court’s perspective as to what the “child’s best interests” actually are, the testimony and evidence presented by the parents are obviously very significant. The parents are often the most significant component of the court’s consideration with respect to the child and how the court would seek to allocate important rights and duties to each parent, such as who gets the right to make educational decisions, who gets the right to make important health care and psychological/psychiatric decisions, and who gets to designate the primary residence of the child.
The evidence and testimony provided to the court by the parents is critical because it is the parents who truly are at the “front lines” with regard to their child in most circumstances. If both parents, for instance, wake the child up, get them ready for school, take them to school, take them to their activities, help them with their schoolwork, and keep a close eye on their child’s health care, the court may have little difficulty in appointing both parents as joint managing conservators with rights and duties that may be close to equal.
DECIDING WHICH PARENT IS BEST SUITED FOR PRIMARY CUSTODY
What happens if there’s a case where things are more contested or where one parent is without question more responsible and substantially more attuned to the child’s needs and care? This may also be a “simple” case for the court, insofar as some of the facts speak for themselves. For example, if dad doesn’t know the name of the homeroom teacher, never attended a single parent-teacher conference, never has once spoken with a pediatrician, doesn’t participate in any activities with the child, and instead spends his time closely attached to a bottle of gin, the court may likely be very comfortable giving that parent little control over the child’s life and limiting that parent’s rights and duties by giving mom superior decision-making power.
When things are very contested and it may not be so clear to the court who’s in a better position to have such control over decisions (or how they should be made with respect to the child, i.e., exclusive to one, jointly, or independently), you will likely need to expand your supporting information sources. Witnesses to the lives of the family become more important. Thus, as you proceed with litigation, it’s important to have a broad awareness of who else is playing an important role in the child’s life.
COLLATERAL WITNESSES IN A CUSTODY DISPUTE
Collateral witnesses (people apart from the parents or conservators) can offer insight on how a child is doing or functioning when the child is not with both parents. Alternatively, a collateral witness – a teacher, for example – may describe how one parent is particularly “good,” and another may be relatively “bad” from their perspective. To the court, these collateral witnesses may present a fuller picture as to what is going on in a child’s life and what would be in the child’s best interests in regard to an outcome in the case. However, a word of caution: the friend, the teacher, the coach, whatever third party there may be that may have special knowledge of the child, may not be as assertive with their position when brought to court as they were on the phone with you the day before. The confines of the courtroom can be very intimidating, especially to people who are not directly involved in a custody case.
Another complication exists with bringing in multiple witnesses to support your client’s position. Court can be a cumbersome and a time-consuming process: things get delayed, reset for another day, or they can go very long. It can be particularly burdensome for parties outside of the dispute. It can be expensive for the witnesses too. That third-party witness may have to take off work. They may have to travel. Also, they truly may not like the discomfort that comes with live testimony, especially cross-examination. They may distance themselves from you and the child as a ramification of their good intention of support.
In order to avoid this possible negative impact on your relationships, and still present critical evidence, the best option for supportive testimony may be a mental health professional.
There are several reasons why. But do not go through this process without the counsel of an experienced custody dispute attorney.
WHEN AND WHY TO BRING IN A MENTAL HEALTH EXPERT
Many mental health professionals are educated and trained to deal with the issues that are involved in family law custody litigation. But first, what do we mean (or courts mean) when we say “mental health professional”? This designation covers a broad range of professionals, including psychologists, psychiatrists, licensed professional counselors, licensed professional social workers, parenting facilitators, and custody evaluators. These are individuals who are licensed by the state and who may even follow particular roles defined by statute in the Texas Family Code. However, not all mental health professionals have similar credentials. For example, a psychiatrist is a medical doctor while a psychologist with a Ph.D. is not.
One of the most important things that a mental health expert may be able to do, in addition to meeting with the child and maybe both parties, is contact and discuss things relevant to the case and the child with all the collateral witnesses. The mental health professional can often convey the information that they have learned, whether from counseling sessions, testing or from their discussions with collateral witnesses, to the court.
Because of their training and education, a mental health professional involved in the custody case will likely have an opinion to share with the court. However, an opinion as to an ultimate custody decision is only appropriate when the mental health professional has met all the parties involved: the respective parents and the child. Nevertheless, even if a mental health professional cannot opine as to an ultimate custody decision, they can likely add very important color to the court’s consideration of what is in the child’s best interests.
COMPLEXITIES OF CONTESTED CUSTODY CASES
A contested child custody case isn’t typically a matter fought out between the parties in isolation. It will often involve a lot of components such as collateral witnesses and mental health professionals. It will sometimes entail a group effort for the court to define what is in the child’s best interest. It’s important to work with your child custody attorney to identify your interests, your strengths and weaknesses, and ways to either accentuate and enhance them for presentation or mitigate the problems presented.
It’s also important for you and your custody lawyers to work together to identify those other people who share a role in the upbringing of your child. Consider discussing the benefits or consequences of retaining a mental health expert or having one appointed, as it can provide important supporting information to the court related to the child’s best interests.
It’s important to recognize that when things are contested in a custody case, organizing and dealing with these myriad parts and people can take time.
You’re talking about a matter that has significance to you and your relationship with your child and your child’s development for years to come. Once a judgment is finalized, it is difficult to modify a child custody order. So in that regard, be patient and work with your attorney and any mental health professional involved. In the end, you (and your relationship with your child) will likely benefit greatly.
In Texas, the issue of custody can be decided by a jury if one side requests it.
Call today to schedule a consultation with the experienced legal team at Orsinger, Nelson, Downing & Anderson. We have decades of experience handling all kinds of complex and international child custody cases, and we will fight tooth and nail for you and your family in court. To reach our Dallas office, call (214) 273-2400. Contact our Frisco law office at (972) 963-5459. If you’re in south Texas, contact our law firm’s San Antonio office at (210) 225-5567.