If you and your ex are in the middle of a custody dispute, it probably means that you both can’t seem to agree on how much time each should have the kids for. If you’re just getting out of a divorce, a child custody battle may very well be the next stressful thing you have to deal with.
Unlike divorces which are final once the divorce decree is signed by the judge and the assets get divided thereafter, with custody disputes, there’s a good chance you’ll be dealing with it for a while to come. In an ideal world, it would be great to reach an agreement as to how your kids’ time should be split between each parent.
However, this is rarely the case. The world we live in is less than ideal. As a result, you and your ex might have to result in letting the courts decide who the custodial parent should be as pertains to having legal and physical custody of the children.
If you’re smack in the middle of a custody dispute or are headed into one, you’ve come to the right place. This guide explores all you need to know about custody disputes in complex parent-child relationships and what you can expect.
Best Interests of the Child
What many parents fail to consider when they plunge head-first into child custody battles is whether what they want is in their child’s best interest. It’s a phrase that’s loosely thrown around, but not many understand its full implication.
Even if you, your child custody lawyer, your ex and your ex’s attorney somehow manage to settle a child custody dispute out-of-court, or a child custody Texas judge in family court makes that decision, at the end of the day only one thing matters. The overriding focus is finding a lasting solution that is in the child’s best interest.
Decisions should be made with the ultimate goal of fostering the child’s mental health and emotional wellbeing. Decisions need to be made based on safeguarding the security and happiness of the child to give them the best chance to thrive and develop into productive members of society in the future.
Factors That Determine What the Best Interests of the Child Are
More often than not, the best interest of the child in the middle of a custody dispute is to maintain a close and loving relationship with both parents irrespective of their personal feelings (or lack thereof) towards each other. Courts, therefore, don’t just focus on one issue but instead take on a more holistic approach to make their decision.
Some of the most common factors that are taken into consideration when determining the best interests of the child are:
- The wishes of the child if they are old enough express a reasonable preference to be with one parent over the other
- Any special needs that the child might have and the capacity of each parent to be able to cater to those needs
- The physical and mental health of the parents
- Any cultural or religious consideration that may come into play
- The need for the child to remain in a stable home environment
- How effectively the child will integrate into the school and community
- If the household has other members, how the interrelationships and interactions will impact the child
- The use of excessive discipline
- The evidence of parental domestic, emotional, alcohol, or sexual abuse
- The opportunity for support from and interaction with other members of the extended family such as the grandparents
- Other children whose custody plays a role in this child’s custody arrangement
A child’s best interest ultimately boils down to the child’s circumstances, their safety and happiness, the custodial parent’s circumstances, and their capacity to parent. Even if you understand what the best interests of your child are, the decision ultimately rests with the courts.
Custodial Parental Rights in Texas
Parental rights in Texas are listed in section 153.132 of the Texas Family Code. Texas law refers to the custodial parent/guardian as the “conservator”.
It lists 10 rights with the notable ones being 1, 2, 3, and 7. They include the right to:
- Choose where the child’s primary residence will be;
- Consent to invasive medical procedures to be carried out on the child;
- Consent to any psychological or psychiatric treatment that the child may require;
- Receive periodic child support payments and to use these funds for the benefit of the child;
- Represent the child in legal matters and make decisions on their behalf;
- Consent to marriage and/or their enlistment in the US Army;
- Make decisions concerning the child’s education;
- The child’s services and subsequent earnings;
- Represent the child in their estate if no attorney ad litem or legal guardian has been appointed for them;
- Apply for, renew, and maintain possession of the child’s passport.
Once both parties are aware of the custodial parental rights as stipulated by the Texas Family Code, matters involving child support and visitation become straightforward based on these presumptions.
Do step-parents have rights? This is a common question that arises in complex parent-child relationships. The short answer is yes. Step-parent rights are outlined in the Step-Parent Statute under Texas Family Code Section 102.003 (11).
According to the statute, you can bring a custody suit if you are:
“Someone with whom the child and the child’s managing conservator, guardian or parent have resided for a minimum of six months, but not more than 90 days preceding the petition filing date, if the child’s managing conservator, guardian or parent is deceased at the time of filing.”
In other words, if you are a step-parent married to the now-deceased biological parent or sole custodian of the child in question, you have grounds to pursue the conservatorship of the child. This essentially gives custodial rights to a step-parent who has played an active role in raising the child for at least six months ending not more than 90 days before the date the petition was filed.
Remember those best-interest-of-the-child factors listed earlier? This is a perfect example of when the court would review them holistically and make a ruling as to whether a legal standing can be established for that step-parent.
This can be difficult to do if the other surviving parent is still in the picture. The step-parent, in this case, would have a higher burden of proof to overcome the “parental presumption” by showing that the surviving parent is unfit to parent their child.
Biological Parents Rights After Adoption
It’s important to mention here that gaining custody of a child is not the same as adoption. It is not all that uncommon for a court to grant conservatorship to someone who is not the biological parent of a child.
However, the conservatorship rights can include several child-raising rights that are similar to those that a child’s biological parent has but are limited to what the judge lists in the court order. On the other hand, through adoption, the child becomes the “legal child” of their adoptive parents.
Therefore, the adoptive parents’ rights and responsibilities towards their adoptive children are the same as those of their biological children. As a result, they also share the same inheritance rights, just like the biological children of the parents in question.
In other words, if the adoptive parent were to die without a will in place, the adopted child would share in the inheritance in the same way as any natural-born children. Regarding biological parents’ rights after adoption, three possible scenarios could play out in the state of Texas.
Scenario A: The Biological Parents Terminate Their Rights
This comes into effect if each living biological parent of the child terminates their rights or an Adoption lawsuit is filed to terminate their parental rights. A court would only rule on voluntary termination if it is deemed to be in the child’s best interest.
In involuntary termination of parental rights, a high legal standard would have to be met to prove that the parent:
- Has endangered the child
- Has engaged in criminal conduct
- Has abandoned the child
- Is otherwise unfit
Scenario B: Step-Parent Adoption
Step-parents can ask to adopt a step-child without the biological parent terminating their parental rights. A biological parent may keep their parental rights only if they are married to the step-parent seeking adoption. However, in such situations, the other biological parent has to relinquish their rights to make room for the adoptive parent.
Scenario C: Parent Consent From the Non-Terminated Parent
If a child is at least two years old, they can be adopted by an adult provided that they meet the following two conditions:
a. That one biological parent terminates their parental rights, and the remaining biological parent agrees to the adoption
b. That the managing conservator had care, control, and possession of the child in question for six months leading up to the adoption
To reiterate, the court only rules on what is in the child’s best interest.
Child Rights When Parent Dies
In Texas, when the custodial parent dies, the new custodian of the child varies depending on the situation. The child will usually be put under the care of a guardian the child knows well.
However, this isn’t always the case if the non-custodial parent was/is deemed to be unfit. For instance, if they had a history of drug or any other kind of abuse, the judge might not grant them custody.
Another instance where a biological non-custodial parent might not be granted custody is if there was a step-parent adoption by the spouse of the deceased. Step-parent adoption effectively terminates the parental rights of the non-custodial biological parent.
If no step-parent adoption took place and the non-custodial biological parent is absent, then the courts will hand the child over to the care of their biological grandparents. The courts may also grant the grandparents’ custody rights over the children if they move to court and prove that the child would be better off in their care. This may happen if they don’t feel that it is in the child’s best interest to be in the care of the non-custodial parent.
Does a Surrogate Mother Have Rights to the Child?
In surrogacy-friendly states like Texas, gestational agreements between the surrogate mother and the intended parents are enforced to a T. This effectively voids any parental-rights claims that a surrogate mother may place on the child they are carrying.
As soon as the child is born, the intended parents are listed as on the child’s birth certificate, making them the legal parents to the child. Gestational surrogacy is, however, different from traditional surrogacy.
In the latter, the surrogate mother uses her egg, which is artificially inseminated using sperm from the intended father or sperm donor. In such instances, since the surrogate mother is also the biological mother, such cases are legally treated as adoption. This form of surrogacy, however, is not common.
LGBT Parental Rights
It’s a fact that same-sex couples cannot have biological children together. One partner may be the legal parent either through adoption or biologically while the other may be the emotional parent and lacks the legal rights to technically qualify as a parent in the eyes of the law.
So, if the couple separated, the legal parent would retain sole conservatorship. The secondary emotional parent wouldn’t have any legal rights to the child, making it impossible for a joint custody arrangement to ensue. Their access to the child rests at the discretion of the legal parent.
Get Legal Advice
The possibility of a legal face-off between you and your ex in a heated custody battle can be daunting. If you can avoid it altogether and reach an agreement regarding custody and visitation, then you will avoid a long drawn out court process that may have detrimental effects on the children involved.
However, not all cases are straightforward. Sometimes the unique circumstances surrounding a case place it outside the scope of your run-of-the-mill custody dispute. You might need to call on the best family law attorney to help you litigate your case.
If you have more legal questions, you can also chat now with a Laws101.com attorney, where you’ll be instantly connected to a lawyer who can give you legal guidance on your specific case or question.