Your kids are your top priority. I understand. I'm a parent. I've personally dealt with my own custody issues, and, let me tell you, they're tough to deal with.
Whether you're going through a divorce, going to court for custody for the first time, or trying the change ("Modification") or enforce ("Enforcement") an existing custody order, all you want to do is protect your kids, give them the best, and always be there for them.
The legal process for deciding custody is called a Suit Affecting Parent-Child Relations ("SAPCR").
The outcome of a SAPCR depends a great deal on the specific details of your situation, which means that a lot of time and attention will be focused toward figuring out exactly what goes on in your life, what your living situation is like, and determining your ability to care for children. At the same time questions about your life are being asked and answered, the same questions will be asked and answered about the other person seeking custody.
As you can imagine, this process should be handled with care and respect for you and your privacy, as well as for your children and their privacy. It's important that the process not be allowed to become a source of embarrassment or anxiety. Choosing the right attorney can help reduce the stress during this part of the process.
When all the questions have been answered and the details of your situation are clear, a court will make a decision about custody (technically referred to as "conservatorship") based on the best interest of the child. The court's decision will include specifics about who the child lives with (referred to in Texas as "the right to designate the primary residence"), a visitation schedule (known as "possession"), and the amount of child support and medical and dental support if requested.
The court then puts its decision into an order for you and the other party to guide your relationship and parenting efforts into the future. If a change needs to be made to the order or if it needs to be enforced, you will need to go back to court to explain what you need and ask them to grant your request.
Best Interest of the Child
The "best interest of the child" is the number one factor in every decision regarding child custody. Determining the best interest of a child is a sensitive, fact-intensive process, and can vary greatly from one child to the next.
When considering what factors are relevant for determining a child's best interest, it can be tricky, although it's always required, to separate the parents' interests from the child's. It can be very easy to confuse your interests with your child's interests by considering things such as the convenience of a particular custody or visitation arrangement. While convenience for parents can factor into a child's best interest, it's certainly equally likely that the parent's interest in convenience is incompatible with the best interest of the child.
The following examples are commonly used by courts for determining a child's best interest. However, because determinations about a child's best interest are fact intensive and can vary so much from one situation to the next, it's impossible to list every factor that may be relevant for determining a child's best interest. The following examples are provided to help understand the types of considerations the courts may make, rather than the exact considerations they will always make.
What type of relationship does the child have with each party?
Can the child’s relationship with the parties be preserved by one type of custody arrangement over another?
How are the child’s emotional and physical needs best met (now and in the future)?
Can only one party provide the child with the stability they require?
Does the child have any siblings they’re close to and benefit from being with?
Does either parent have a history of family violence or sexual assault?
Will the child have to switch schools / church / therapy
Suit Affecting Parent-Child Relationship
If you're wanting a court to establish custody or a visitation schedule, you'll need to file a Suit Affecting the Parent-Child Relationship ("SAPCR"). You'll also need to file a SAPCR if you're trying to get child support payments or getting divorced from the other biological parent of your child.
Filing a SAPCR allows you to request what you want from a court and present your reasons why they should grant your request. The court will be interested in hearing specifics about the past as well as details about what's currently happening.
You'll want to discuss who has been your
children's primary care taker, whether your children have specific mental or physical needs, how they're doing in school, what extracurricular activities they participate in, whether they're interwoven into a social network, and what their routine is. You'll also need to be prepared to discuss your work and/or school schedule, education, daily routine, extracurricular activities, and your social network. The court will consider this information and determine whether both parents are fit to be around the children and which parent the child should live with.
Evidence that one parent makes more money than the other isn't useful for determining custody, although it's helpful for determining child support.
When the SAPCR is complete, the court will enter an order that carries the full force of the law--this order is extremely important. The order will guide you and the other party as you parent your children in the future. As long as the order is followed, both parties and your children will have certainty about what will happen in the future and when. If one party begins failing to follow the order, the other party may bring a motion to enforce the order. If the time comes or the situation changes, either party may also file a motion to modify the order.
If you already have an order from a Suit Affecting the Parent-Child Relationship ("SAPCR") and you want to change it, you need to file for a modification. Courts grant modifications when a substantial change has occurred that makes modifying the original order in the children's best interest. Just like in a SAPCR, courts are concerned with the best interest of the child. What's different about modifications, however, is that courts must also find that a significant change has occurred. Examples of significant changes include a change in a child's desires, current and future emotional and physical needs, whether the child is or will be in physical danger, and the stability of the home.
Typically, courts are reluctant to grant modifications within one year after the original order was entered, although they will be granted when required by the situation.
If you have a final order from a Suit Affecting the Parent-Child Relationship ("SAPCR") or temporary orders and they're not being followed, you can file a motion to have the order enforced. It's always a good idea to document the date, time, and location when an order isn't followed. You'll also want to attempt to follow the order even if it requires varying just a bit. For instance, if drop-off of your kiddos is scheduled at 6 p.m. on Sunday in the Whataburger parking lot, if you leave Whataburger at 6:01 p.m. you're not doing yourself any favors when you seek to enforce the motion.
I'm Not Getting To See My Kids
Be sure to document all dates and times you don't get to spend with your child or your child misses with their other parent. Not only is this information required for showing the court the exact date and time the order was violated, if your motion to enforce is successful you can receive make-up time with your child or back child support.
My Kids Weren't Returned to Me
First, keep attempting to pickup your child--one attempt isn't enough. Next, if there's a parenting order you can contact the sheriff in the county where the child is currently located to see if they'll recover your child. Finally, if nothing else has worked you need to contact a lawyer immediately to file a Writ of Habeas Corpus and seek a Writ of Attachment.