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Custody & Visitation

Custody and visitation issues can be an integral part of a divorce, or may present themselves in the context of a paternity case, a suit affecting the parent-child relationship, or a modification suit.

A paternity case is typically initiated when it is necessary to establish the parent-child relationship between the biological father and the child because he has not executed an Acknowledgment of Paternity or he was not married to the child’s mother. Whereas a suit affecting the parent-child relationship is appropriate when the father’s paternity is already legally established, but support, visitation, and conservatorship issues remain to be resolved. Regardless if the custody and visitation issues are resolved in the context of either a divorce, paternity case or a suit affecting the parent-child relationship, these provisions, as well as child support provisions, are in most cases always subject to modification by the Court for as long as the child is a minor. When a client wishes to re-visit these issues after the entry of a prior court order, our firm commences a modification suit.

In Texas, a parent is considered to have custody when that parent has the exclusive right to establish the primary residence of the child. This is one of the parental rights and duties enumerated in the Texas Family Code. The remaining rights and duties are as follows:

  1. the right to have physical possession and to direct the moral and religious training;

  2. the duty of care, control, protection, and reasonable discipline of the child;

  3. the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;

  4. the duty, except when a guardian of the child’s estate has been appointed, to manage the estate of the child, including the right as an agent of the child to act in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government;

  • except as provided by Texas Family Code Section 264.0111, the right to the services and earnings of the child;

  • the right to consent to the child’s marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;

  • the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;

  • the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;

  • the right to inherit from and through the child;

  • the right to make decisions concerning the child’s education; and

  • any other right or duty existing between a parent and child by virtue of law.

At the conclusion of a custody case, the judge or jury will decide which parent shall have the exclusive right to establish a child’s primary residence. The judge must also allocate the remaining rights and duties to the parents, either independently, jointly, or exclusively. The various combinations are extensive and are, for the most part, within the discretion of the Court to determine.

Regarding visitation, Texas law provides there is a rebuttable presumption that for a child age three or older, it is in the best interest of the child that the non-custodial parent have visitation in accordance with the Standard Possession Order. Please reference the link to the Texas Family Code appearing on our “Link” page to take you to Chapter 153, Sections 153.311 through 153.317 for a complete description of the terms of the Standard Possession Order. It is important to recognize this is a rebuttable presumption such that based on certain facts existing in your case, the Standard Possession Order may not be determined to be in the best interest of your child, in which case the Judge will establish a more appropriate visitation schedule.

For children less than three years of age, the court shall render an order appropriate under the circumstances as well as a prospective order to take effect on the child’s third birthday, which presumptively will be the standard possession order.

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