How to File for Child Custody in Texas
Child custody is a complex issue that can be emotionally and financially taxing for both parents. In Texas, the court’s primary concern is the best interest of the child. In this article, we will explain how to file for child custody in Texas in the following steps:
1. Determining your Eligibility
2. Determining Jurisdiction
3. Understanding the Types of Child Custody
4. Writing the Petition for Child Custody
5. Filing the Petition for Child Custody
6. Serving the Respondent
7. Waiting for the Other Parent’s Response
8. Attending the Temporary Orders Hearing
9. Attending the Final Trial
If the prospect of tackling this task alone seems overwhelming, it may be beneficial to seek the guidance and assistance of a skilled attorney.
Step 1: Determine Your Eligibility
The first step in filing for child custody in Texas is to determine your eligibility. In order to file for child custody, you must be a parent, legal guardian of the child, grandparent, sibling, or other person permitted by the law. A non-exclusive list of people who may file for custody is listed below.
Tex. Fam. Code § 102.003
(a) An original suit may be filed at any time by:
(1) a parent of the child;
(2) the child through a representative authorized by the court;
(3) a custodian or person having the right of visitation with or access to the child appointed by an order of a court of another state or country;
(4) a guardian of the person or of the estate of the child;
(5) a governmental entity;
(6) the Department of Family and Protective Services;
(7) a licensed child placing agency;
(8) a man alleging himself to be the father of a child filing in accordance with Chapter 160, subject to the limitations of that chapter, but not otherwise;
(9) a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition;
(10) a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Chapter 161 or to whom consent to adoption has been given in writing under Chapter 162;
(11) a person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition;
(12) a person who is the foster parent of a child placed by the Department of Family and Protective Services in the person’s home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition;
(13) a person who is a relative of the child within the third degree by consanguinity, as determined by Chapter 573, Government Code, if the child’s parents are deceased at the time of the filing of the petition;
(14) a person who has been named as a prospective adoptive parent of a child by a pregnant woman or the parent of the child, in a verified written statement to confer standing executed under Section 102.0035, regardless of whether the child has been born; or
(15) subject to Subsection (d), a person who is an intended parent of a child or unborn child under a gestational agreement that complies with the requirements of Section 160.754.”
Tex. Fam. Code § 102.004
(a) In addition to the general standing to file suit provided by Section 102.003, a grandparent, or another relative of the child related within the third degree by consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:
(1) the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development; or
(2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.
Tex. Fam. Code § 102.0045
(a) The sibling of a child may file an original suit requesting access to the child as provided by Section 153.551 if the sibling is at least 18 years of age.
Step 2: Determining Jurisdiction – A Fundamental Aspect of How to File for Child Custody in Texas
In order to file for custody in Texas, the court must have jurisdiction. Jurisdiction refers to the authority of a court to hear a case and make a decision that affects the parties involved. In order for a court to have jurisdiction, the parties must have a certain level of connection to the state where the court is located.
In cases involving multiple states, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies. The UCCJEA is a law that provides a uniform set of rules for states to follow when determining jurisdiction for child custody cases that involve more than one state.
The UCCJEA applies when a parent files a child custody case in Texas and the child or the other parent lives in another state. The law also applies when a parent files a child custody case in another state and the child or the other parent lives in Texas. It sets forth the rules for determining which state’s court has the authority to make a custody determination, and it also provides for the enforcement of custody and visitation orders between states.
Under the UCCJEA, the child’s “home state” has the first opportunity to make a custody determination. The home state is defined as the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the custody proceeding. If the child has not lived in any state for at least six consecutive months, the court in the state where the child and at least one parent has significant connection will take jurisdiction.
Tex. Fam. Code § 152.201
(a) Except as otherwise provided in Section 152.204, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under Subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 152.207 or 152.208, and:
(A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(3) all courts having jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or
(4) no court of any other state would have jurisdiction under the criteria specified in Subdivision (1), (2), or (3).
Step 3: Understand the Types of Child Custody
Two types of child custody in Texas include physical custody and legal custody. Physical custody refers to where the child will physically reside, the physical care, and supervision of the child. It determines where the child will reside and with whom the child will live with. The parent who has physical custody is responsible for the day-to-day care of the child, such as providing food, shelter, and clothing. Physical custody can be joint, where both parents share physical custody of the child, or sole, where only one parent has physical custody of the child.
On the other hand, legal custody refers to the right to make important decisions regarding the child’s upbringing such as education, healthcare, and religion. Like physical custody, legal custody can also be joint or sole. A parent with joint legal custody has the right to make decisions about the child’s upbringing in conjunction with the other parent, while a parent with sole legal custody has the sole authority to make decisions about the child’s upbringing.
It is important to note that physical and legal custody are separate concepts and can be awarded differently. For example, a parent may have physical custody of the child but share legal custody with the other parent. This means that the parent with physical custody is responsible for the day-to-day care of the child, but both parents have the right to make decisions about the child’s upbringing.
Step 4: Write the Petition for Child Custody
Courts determine who should have custody based on “the best interest of the child.” The court will consider a variety of factors such as the child’s wants, developmental needs, the child’s relationship with each parent, and any history of abuse or neglect. The goal of the best interest of the child standard is to ensure that the child’s physical, emotional, and developmental needs are met, and that the child is protected from harm and given the opportunity to thrive. When writing your custody petition, you should explain why you should have custody in a way that highlights the factors courts use to determine what is in the best interest of the child.
Our Custody Affidavit Evaluator is an invaluable tool that can assist you in presenting your case in a way that highlights the factors most important to the court when determining what is in the best interest of the child. With its guidance, you can effectively communicate the nuances of your situation, and ensure that your child’s well-being is given the attention and consideration it deserves.
View Custody Affidavit Evaluator
In addition, certain requirements must be included in the custody petition. The title of the petition and any other documents in the proceeding must include the name of the child and the phrase “In the interest of.” The petition must also include the name and date of birth of the child, the full name of the person filing the petition and their relationship to the child, and the names of any other people legally involved in the child’s life, such as parents or guardians. Additionally, the petition must state what action the court is being asked to take and the legal reason for the request. The petitioner must also attach a copy of any protective orders in effect or pending involving a party to the suit or a child of a party to the suit. If a copy of the order is not available at the time of filing, the petition must state that a copy of the order will be filed with the court before any hearing.
Tex. Fam. Code § 102.008
(a) The petition and all other documents in a proceeding filed under this title, except a suit for adoption of an adult, shall be entitled “In the interest of __________, a child.” In a suit in which adoption of a child is requested, the style shall be “In the interest of a child.”
(b) The petition must include:
(1) a statement that:
(A) the court in which the petition is filed has continuing, exclusive jurisdiction or that no court has continuing jurisdiction of the suit; or
(B) in a suit in which adoption of a child is requested, the court in which the petition is filed has jurisdiction of the suit under Section 103.001(b);
(2) the name and date of birth of the child, except that if adoption of a child is requested, the name of the child may be omitted;
(3) the full name of the petitioner and the petitioner’s relationship to the child or the fact that no relationship exists;
(4) the names of the parents, except in a suit in which adoption is requested;
(5) the name of the managing conservator, if any, or the child’s custodian, if any, appointed by order of a court of another state or country;
(6) the names of the guardians of the person and estate of the child, if any;
(7) the names of possessory conservators or other persons, if any, having possession of or access to the child under an order of the court;
(8) the name of an alleged father of the child or a statement that the identity of the father of the child is unknown;
(9) a full description and statement of value of all property owned or possessed by the child;
(10) a statement describing what action the court is requested to take concerning the child and the statutory grounds on which the request is made;
(11) a statement as to whether, in regard to a party to the suit or a child of a party to the suit:
(A) there is in effect:
(i) a protective order under Title 4;
(ii) a protective order under Subchapter A, Chapter 7B, Code of Criminal Procedure; or
(iii) an order for emergency protection under Article 17.292, Code of Criminal Procedure; or
(B) an application for an order described by Paragraph (A) is pending; and
(12) any other information required by this title.
(c) The petitioner shall attach a copy of each order described by Subsection (b)(11)(A) in which a party to the suit or a child of a party to the suit was the applicant or victim of the conduct alleged in the application or order and the other party was the respondent or defendant of an action regarding the conduct alleged in the application or order without regard to the date of the order. If a copy of the order is not available at the time of filing, the petition must state that a copy of the order will be filed with the court before any hearing.
(d) Notwithstanding any other provision of this section, if the Title IV-D agency files a petition in a suit affecting the parent-child relationship, the agency is not required to:
(1) include in the petition the statement described by Subsection (b)(11); or
(2) attach copies of the documentation described by Subsection (c).
Step 5: Filing the Petition for Child Custody – A crucial step in the process of How to File for Child Custody in Texas
Now you’ve written your custody petition and are ready to file it. In Texas, the petition must be filed in the county where the child currently resides, unless another court has jurisdiction. In Texas, a custody petition is generally filed in the district court of the county where the child resides, but some may be filed in county court as well.
Tex. Fam. Code § 103.001
(a) Except as otherwise provided by this title, an original suit shall be filed in the county where the child resides, unless:
(1) another court has continuing exclusive jurisdiction under Chapter 155; or
(2) venue is fixed in a suit for dissolution of a marriage under Subchapter D, Chapter 6.
Step 6: Serving the Respondent – A Key Element in the Process of How to File for Child Custody in Texas
Once the petition has been filed, the other parent must be served with a copy of the petition and a citation. Service of the petition is the process of delivering a copy of the petition to the defendant, usually through a process server or by certified mail.
It’s important to note that the service of process must be done correctly and in compliance with the rules of the court, otherwise, it could be considered invalid and the Respondent will not have to respond. This could lead to the court dismissing the case, so it’s important to properly serve the papers in order to give notice to the Respondent and give the court the jurisdiction over the case.
Step 7: Wait for the Respondent’s Response to the Petition
The Respondent typically has 20 days to respond to the petition. The most common response from a Respondent is filing either an answer, a counter-petition, or a motion to dismiss. An answer is a written response to the custody petition in which the Respondents can either admit or deny the allegations made in the petition and state any defenses they have. A counter-petition is a separate petition in which the Respondent can ask the court to make a different custody decision than what is being requested in the original petition. A motion to dismiss is a request to the court to dismiss the petition due to a legal defect, such as lack of jurisdiction.
Tex. R. Civ. P. 99
“The citation shall direct the defendant to file a written answer to the plaintiff’s petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service thereof.”
The Respondent can also file a motion for temporary orders and request a mediation or arbitration. A motion for temporary orders is a request to the court to make temporary custody and possession orders while the case is pending. Mediation is a process to try to reach an agreement with the other party with the help of a neutral third-party mediator. Arbitration is a process in which a neutral third party, called an arbitrator, listens to the evidence presented by the parties and makes a decision on the dispute.
Tex. Fam. Code § 105.001
(a) In a suit, the court may make a temporary order, including the modification of a prior temporary order, for the safety and welfare of the child, including an order:
(1) for the temporary conservatorship of the child;
(2) for the temporary support of the child;
(3) restraining a party from disturbing the peace of the child or another party;
(4) prohibiting a person from removing the child beyond a geographical area identified by the court; or
(5) for payment of reasonable attorney’s fees and expenses.
Tex. Fam. Code § 153.0071
(a) On written agreement of the parties, the court may refer a suit affecting the parent-child relationship to arbitration. The agreement must state whether the arbitration is binding or non-binding.
(b) If the parties agree to binding arbitration, the court shall render an order reflecting the arbitrator’s award unless the court determines at a non-jury hearing that the award is not in the best interest of the child. The burden of proof at a hearing under this subsection is on the party seeking to avoid rendition of an order based on the arbitrator’s award.
(c) On the written agreement of the parties or on the court’s own motion, the court may refer a suit affecting the parent-child relationship to mediation.
(d) A mediated settlement agreement is binding on the parties if the agreement:
(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;
(2) is signed by each party to the agreement; and
(3) is signed by the party’s attorney, if any, who is present at the time the agreement is signed.
Step 8: Attend the Temporary Orders Hearing
If a party requests for temporary orders, there will be a temporary orders hearing. This hearing is intended to establish temporary arrangements for the child while the case is pending. The judge will consider factors such as the child’s safety and well-being, the parents’ work schedules, and the child’s school schedule.
Step 9: Attend the Final Trial
If the case is not settled out of court, a final trial will be held to determine the final custody arrangements for the child. Both parents will have the opportunity to present evidence and testify. The judge will consider factors such as the child’s best interests, the parents’ ability to co-parent, and any evidence of abuse or neglect.
Word of Caution — This post is for educational purposes. Custody issues may be very complex and have significant consequences. It is best to always seek advice and help from a licensed lawyer.