Full question:
I tried to file for divorce and request joint custody of my 2 kids. My husband beat me to filing for divorce. Will I need an attorney to fight for custody or will a judge make this decision for me? By the way my living arrangement and other things are better than my husbands.
- Category: Divorce
- Date:
- State: Texas
Answer:
A judge will make the determination regarding custody of your children. It may be helpful for you, however, to seek the advice of a local attorney if you and your husband will not be able to agree on the terms of your divorce, including custody issues.
In Texas, there is a rebuttable presumption that parents should serve as the Joint Managing Conservators of their children. "Conservatorship" is "Custody" of the children. Joint Managing Conservatorship does not mean that each party will have the children one-half of the time. It also does not mean that child support will not be awarded to one parent. Joint Managing Conservatorship does mean that the parents will either share, allocate, or apportion parental rights and duties. In most cases, it also means that the child's domicile must be established in the final Court orders.
The relevant Texas statutes are as follows:
§ 152.102 FAM. Definitions
In this chapter:
(1) "Abandoned" means left without provision for reasonable and
necessary care or supervision.
(2) "Child" means an individual who has not attained 18 years of
age.
(3) "Child custody determination" means a judgment, decree, or other
order of a court providing for legal custody, physical custody, or
visitation with respect to a child. The term includes permanent,
temporary, initial, and modification orders. The term does not include
an order relating to child support or another monetary obligation of an
individual.
(4) "Child custody proceeding" means a proceeding in which legal
custody, physical custody, or visitation with respect to a child is an
issue. The term includes a proceeding for divorce, separation,
neglect, abuse, dependency, guardianship, paternity, termination of
parental rights, and protection from domestic violence in which the
issue may appear. The term does not include a proceeding involving
juvenile delinquency, contractual emancipation, or enforcement under
Subchapter D.
(5) "Commencement" means the filing of the first pleading in a
proceeding.
(6) "Court" means an entity authorized under the law of a state to
establish, enforce, or modify a child custody determination.
(7) "Home state" means the state in which a child lived with a parent
or a person acting as a parent for at least six consecutive months
immediately before the commencement of a child custody proceeding. In
the case of a child less than six months of age, the term means the
state in which the child lived from birth with a parent or a person
acting as a parent. A period of temporary absence of a parent or a
person acting as a parent is part of the period.
(8) "Initial determination" means the first child custody
determination concerning a particular child.
(9) "Issuing court" means the court that makes a child custody
determination for which enforcement is sought under this chapter.
(10) "Issuing state" means the state in which a child custody
determination is made.
(11) "Legal custody" means the managing conservatorship of a child.
(12) "Modification" means a child custody determination that
changes, replaces, supersedes, or is otherwise made after a previous
determination concerning the same child, whether or not it is made by
the court that made the previous determination.
(13) "Person acting as a parent" means a person, other than a
parent, who:
(A) has physical custody of the child or has had physical custody
for a period of six consecutive months, including any temporary
absence, within one year immediately before the commencement of a
child custody proceeding; and
(B) has been awarded legal custody by a court or claims a right to
legal custody under the law of this state.
(14) "Physical custody" means the physical care and supervision of a
child.
(15) "Tribe" means an Indian tribe or band, or Alaskan Native
village, that is recognized by federal law or formally acknowledged by
a state.
(16) "Visitation" means the possession of or access to a child.
(17) "Warrant" means an order issued by a court authorizing law
enforcement officers to take physical custody of a child.
§ 152.106 FAM. Effect of Child Custody Determination
A child custody determination made by a court of this state that had
jurisdiction under this chapter binds all persons who have been served in
accordance with the laws of this state or notified in accordance with
Section 152.108 or who have submitted to the jurisdiction of the court
and who have been given an opportunity to be heard. As to those persons,
the determination is conclusive as to all decided issues of law and fact
except to the extent the determination is modified.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
