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                Custody and Conservatorship 
                Child custody proceedings are 
                complicated and can't be exhaustively covered in this short 
                article. I will however, touch upon some general conceptions 
                that I feel are generally accepted as guiding principles in 
                Texas custody proceedings.  
                In this article, the term "custody" refers to the parent (or 
                person) who will have the exclusive right to determine the 
                primary residence of the child(ren) or who the children will 
                live with. The person who has this right is often called the 
                custodial parent and the parent who has visitation is often 
                called the non-custodial parent. For a more in depth examination 
                into what conservatorship is please see
                
                http://www.dallasdivorcelawyer.com/top10.htm question number 
                three. 
                Under Texas law there is no presumption that a woman or a man, 
                based on gender alone, is either more or less fit to be a 
                custodial parent. By law, gender can not be used when making a 
                custody determination.  
                A custody proceeding is started by the filing of either a 
                Divorce Petition (if the parties are married) or a Suit 
                Affecting Parent-Child Relationship, also known as a SAPCR. The 
                filing of either of these lawsuits is very similarly to filing a 
                lawsuit in civil court, with the exception you are suing to be 
                designated the custodial parent of a child. It’s very important 
                to consult with a lawyer if you are faced or will face a child 
                custody proceeding before taking any action. If you are married 
                and you are still living with your spouse (even if you are 
                sleeping in separate bedrooms) it’s very important to not leave 
                the marital residence without your child(ren). If you are in a 
                physically abusive relationship then different rules apply and 
                you should call the police and let them help you remove your 
                spouse from the residence. Domestic violence aside, if you 
                voluntarily leave the residence and your spouse files for 
                divorce it is very difficult, if not impossible to get back into 
                the house while the divorce is pending. This puts you at a 
                disadvantage. The best course of action is to let a Court decide 
                who should be the custodial parent while you wait for your 
                divorce.  
                The Courts guiding legal principle in deciding who should be the 
                custodial parent is the child’s “best interests.” What exactly 
                is in the child’s best interest is not particularly well 
                defined, but Texas Court’s have provided guidance. In one case, 
                Nanci Holley v. David Adams the court came up with a non 
                exclusive list of factors to look at in determining the best 
                interests of the child. The Court found some pertinent factors 
                are : “(A) the desires of the child; (B) the emotional and 
                physical needs of the child now and in the future; (C) the 
                emotional and physical danger (of one parent) to the child now 
                and in the future; (D) the parental abilities of the individuals 
                seeking custody; (E) the programs available to assist these 
                individuals to promote the best interest of the child; (F) the 
                plans for the child by these individuals; (G) the stability of 
                both parties homes; (H) the acts or omissions of the parent 
                which may indicate that the existing parent-child relationship 
                is not a proper one; and (I) any excuse for the acts or 
                omissions of the parent.” Sometimes these factors are referred 
                to “Holley” factors. Other factor’s which a Court will look to 
                are who has been making the educational decisions of the 
                children, who has been making any medical related decisions, who 
                generally prepares for and feeds the children, which parent 
                regularly meets with the teachers if the child is school age, 
                has one parent been alienating the child from the other parent, 
                who gets the child up in the morning and puts him/her to bed at 
                night, and who participated in extracurricular activities. Again 
                this list is not exhaustive, but it does provide guidance.   
                Other factors that a Court will always look at are if either 
                parent has or is using drugs or has either parent been involved 
                in any criminal activity. Either of these will almost always 
                result in an adverse ruling and sometimes a restriction in the 
                amount of visitation the non-custodial parent has. 
                  
                VISITATION 
                Texas has a set schedule for the non-custodial parent’s periods 
                of possession which the Court’s presume to be in the best 
                interests of the child. Of course this can be changed, and 
                frequently is, if either parent can not act in the children’s 
                best interest. The non-custodial parents possession schedule is 
                often call “Standard Visitation.” Standard visitation applies to 
                children over three years of age. The schedule is generally: the 
                1st, 3rd, and 5th weekends of each month beginning at 6 p.m. 
                Friday and ending 6 p.m. Sunday. Friday determines which weekend 
                is the 1st, 3rd, or 5th (Not Saturday!) Every Thursday night 
                from 6 p.m. until 8 p.m. There is also time for summer and 
                holiday provisions that supercede the above described possession 
                periods. Summer is 30 days in the summer, and Thanksgiving and 
                Christmas are generally alternated every year. The mother always 
                gets the full weekend that Mother’s day falls on and the father 
                always gets the full weekend that Father’s day falls on 
                regardless whether it’s his/her weekend. The one week spring 
                vacation is alternated between the parties yearly. Of course 
                there are many nuances to the visitation periods but this gives 
                the general idea. One of the most important features of Texas 
                Standard visitation is if the parents can agree on a different 
                possession schedule, then the parents are always free to change 
                it. The Court’s encourage this! 
                Once a child is over the age of 18 and is no longer enrolled in 
                school then that child is no longer considered a minor for 
                custody purposes and the possession schedule doesn’t apply. For 
                children under three years of age there isn’t a set schedule in 
                the Texas family code, and each Judge has broad authority to 
                determine a schedule that fit’s the needs of the parents and is 
                in the child’s best interests. Most child psychologists have 
                determined that more frequent contact, but of a lesser duration 
                per visitation period is in the child’s best interest. So for 
                example, some Judge’s will order that the non-custodial parent 
                have any where from two to four days of visitation per week, but 
                the length of time is not as long as it is under "Standard" 
                visitation. 
                 
                   
                  www.dallasdivorcelawyer.com 
                  Turley 
                    Law Center 
                    6440 North Central Expressway, Suite 450 (Corner of N. Central Expy. & University Blvd.) 
                    Dallas Texas 75206 
                  Telephone: 
                    (214) 977-9050 
                   
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