Child Custody Laws in Texas:

The Texas Legislature has made hundreds of changes to the Family Code effective September 2015. If you have a critical child custody issue and are looking for answers, be sure to consult with an experienced attorney to confirm anything you might learn on the internet. As I tell all my clients, do not take legal advice from your ex. Of course your ex is going to tell you you are going to lose your case; you need to get your legal opinions from your own lawyer. If you can’t afford your own lawyer, contact Legal Aid.

Brief Summary:

  1. A custody suit is referred to as a Suit Affecting the Parent-Child Relationship, or SAPCR (pronounced like sap sir) for short.
  2. The primary consideration is the best interest of the child.
  3. Not everyone has standing to sue. See details below.
  4. A court can issue temporary relief to protect the health, welfare, or safety of the child.
  5. Any provision of a temporary or final SAPCR order can now be enforced by contempt.
  6. Most orders require notice and hearing.
  7. You can use Alternate Dispute Resolution services.

Suit Affecting the Parent Child Relationship (SAPCR)

A SAPCR is a special kind of lawsuit in Texas. A SAPCR suit is a suit concerning possession, access, and support for a minor child. It is different than other types of lawsuits in that the parties are not not supposed to be fighting for their own interest but on behalf of their children through their capacity as parents. A SAPCR is also unique in that it does not have to be contested. Parents can and often do agree on arrangements for the care of their children, but those agreements should always be formalized with a court order.

The suit begins with the filing of an original petition asking the court to render specific orders regarding possession, access, and child support for the children. The party filing the petition is called the petitioner and the other party is called the respondent. The respondent must either be given notice of the suit in accordance with the Texas Rules of Civil Procedure, or file a signed and notarized Waiver of Service. The waiver can waive all participation in the suit, but usually is more limited – including just waiving formal service of the petition since this is often an extra unnecessary expense if both parties intend to seek a final order from the court. The respondent has a limited amount of time to file an answer or risk getting a default judgment.

While the suit is pending, the parties can perform discovery. Discovery may include Rule 194 Requests for Disclosure, interrogatories, requests for admissions, requests for production of documents and tangible things, depositions, and subpoenas. A Rule 194 request is information that the other party must provide when asked under the Texas Rules of Civil Procedure, including the legal theories and factual basis of a parties claims and defenses, the names of persons having knowledge of relevant facts, a list of expert witnesses, etc. Interrogatories are lists of a limited number questions that the other party must answer under oath. Requests for admissions are lists of a limited number of facts which the other party must either admit or deny under oath and are used to simplify or limit the number of issues contested in court. Requests for productions of documents are used to obtain information abut the other party’s assets, income, or anything that may be relevant to the investigation of issues in the case. Depositions are examinations of witnesses under oath. Finally, subpoenas are demands to appear as a witness or produce documents and are issued by the court or an attorney under the authority of the state of Texas. These are powerful tools that can be used to gather the information needed to prosecute a SAPCR case.

The suit ends when the case is dismissed or the judge enters a final order after a hearing. A hearing could be a jury trial where the jury decides some specific issues and the judge decides others, a trial before the court where the judge decides everything, or a prove up where the parties agree and one side goes to court to present the agreement to a judge who will usually sign the final order immediately.

The Best Interest of the Child

A SAPCR case is always about the children. While any evidence related to the children’s best interest could potentially be important to the court, it is worthwhile to start by using what are known as the Holly factors which include:

  1. the desires of the children;
  2. the emotional and physical needs of the children now and in the future;
  3. the emotional and physical danger to the children now and in the future;
  4. the parental abilities of the individual seeking custody;
  5. the programs available to assist the individual;
  6. the plans for the children by the parent and the individual seeking custody;
  7. the stability of the home;
  8. the parent’s acts or omissions that indicate that the existing parent-child relationship is not a proper one; and
  9. any excuse for the parent’s acts or omissions.

Assembling evidence around these factors is an important part of any custody case, but these are not the only considerations so evidence gathering should not necessarily be limited to these considerations. The end result of a SAPCR will be a parenting plan, support order, and other miscellaneous orders such as geographic restrictions signed by the judge.

Standing

Standing in a SAPCR can be a complicated, hotly litigated issue. In general, though, if you can answer yes to any of these questions then you likely have standing to file a suit:

  1. Are you a parent of the child?
  2. Are you a sibling of the child and are at least 18 years old?
  3. New! Are you a sibling of a child separated from you by the Department of Family Protective Services?
  4. Are authorized by the court as a representative of the child?
  5. Do you have a right of possession or access by order of a court in another state or country?
  6. Are you the guardian of the estate or of the person of the child?
  7. Do you believe that you are the child’s father?
  8. Did the child primarily live with you for at least six months ending (if at all) not more than 90 days ago?
  9. Did the child’s parent or managing conservator live with you for at least six months ending not more than 90 days ago and that person is deceased?
  10. Were you a foster parent of the child for at least 12 months?
  11. Are you a close relative of the child and the child’s parents are deceased?
  12. Have you been named a prospective parent in a verified written statement to confer standing?

This list is not comprehensive. A “yes” does not guarantee standing and all “no” answers does not preclude standing. You should talk to an attorney assess your particular situation.

Temporary Relief

Temporary relief that can be ordered by the court includes a temporary restraining order, standing order, injunction, and any other temporary order rendered by a court. Temporary orders are made for the safety and welfare of the child and can provide for relief such as temporary support, conservatorship, attorney’s fees, and geographical restrictions. Temporary restraining orders excluding a parent from access of a child can be issued without notice only if the pleading states “specific facts showing that immediate and irreparable injury, loss, or damage will result before notice can be served and a hearing can be held.” Tex. Fam. Code 105.001(b)-(c). Moreover, effective September 1, 2015, a motion for temporary orders in a modification suit must include “an affidavit on the person’s personal knowledge or the person’s belief based on representations made to the person by a person with personal knowledge that contains facts that support the allegation that the child’s present circumstances would significantly impair the child’s physical health or emotional development.” Tex. Fam. Code 156.006 (b-1).

IMPORTANT: If you cannot afford an attorney and are the subject of a temporary restraining order or order attaching your child, the court may now have the authority to appoint an attorney ad litem to represent you in the case. If you cannot afford an attorney, be sure to let the judge know!

Contempt

Any provision of a child custody order, including temporary orders, can now be enforced by contempt. Contempt must be proven by evidence beyond a reasonable doubt and a defendant who cannot afford an attorney is entitled to court-appointed defense counsel. Therefore, if you have any issues with the other party not adhering to orders, call an attorney immediately for advice on how to get the evidence you need to prove your case. Even if you do not want to file an enforcement, if there does come a time when you need to enforce the order, you will want to have done things right from the beginning.

Alternate Dispute Resolution

You have several options to resolve your custody dispute that may provide better outcomes for you and your children than a trial. Alternatives to litigation include Collaborative Law, Mediation, and Arbitration. These will not necessarily be less expensive than litigation, but they remove the uncertainty of a judge’s decision and may allow parties to agree to orders that a judge otherwise does not have the power to grant.

Collaborative law, while not necessarily less expensive than an adversarial proceeding offers a process by which skilled professionals can help you resolve your disputes outside of the public eye in a way that can lead to the best outcome for everyone. It is a confidential, voluntary procedure that both parties must agree to. Instead of one proceeding, the case is spread out among several professionally facilitated face-to-face meetings in a client driven process based on the values, goals, and interests of both parties. The parties do not have to get along – they only have to agree to the process; however, it may not be suitable for cases involving domestic violence. Collaborative law is best started early in the proceedings, even before anything has been filed with the court if possible. Each party must have its own lawyer. Settlements are neither guaranteed nor mandatory, but if a settlement is not reached the attorneys involved must be fired.

Mediation is a confidential process by which a professional, neutral facilitator assists in settlement negotiations. Unlike other forms of ADR, mediation can be ordered by a court and in some courts is always mandatory. Mediation usually happens late in the process after discovery when both sides have a good idea how strong their cases are. Thus, mediation is often risk-based and serves as a way for both sides negotiate an outcome close to or better than what they think they can get in court without all of the risks associated with a trial. If a settlement is not reached, the parties can continue to negotiate or take their case to trial.

Arbitration is also a voluntary process involving an arbitration panel. Rather than facilitating negotiations, an arbitration panel hears both sides of a dispute and renders a decision based on the law and the facts just like a judge would in court. The parties decide beforehand whether the decision will be binding or advisory. An arbitration may be useful in getting a decision earlier than a court would, for deciding some issues that – once decided – would permit the parties to settle or horse-trade on the others, or, in the case of non-binding arbitration, in getting a decision that the parties then decide whether they can live with rather than going to trial.

Conclusion

Do not take legal advice from your ex. Do not think a court trial is the only way to resolve your custody disputes. Do consult with an attorney, research and discuss alternate dispute resolution options with the other parent before retaining an attorney. You want to hire an attorney who is at least open to the idea of ADR. Do know your rights. Do not be afraid of what your ex might do if you try to enforce your rights. Do not be afraid to call an attorney for a consultation. Do get advice early and often. Finally, if you remember nothing else from reading this: Do not take legal advice from your ex.

Good Luck!

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