10 Tips for Your Custody Battle

Aug 30

10 Tips for Your Custody Battle

Custody cases are among the most contentious and emotionally driven suits in Texas. Many individuals fear that they will not be able to come to an agreement surrounding possession and access to their children. In this blog we will share 10 ways you can position yourself to win a custody battle. Here are 10 tips to give you an edge in your case:

10 Tips for Your Custody Battle

1. Be the Primary Caretaker for the Children

How does a Texas Court decide which parent is awarded custody? The answer to that question is a complicated one because the Court can and will consider multiple factors in order to decide what is in the best interest of the child. One of the most important factors that the Court will consider is how much the parent that is requesting custody is equipped to provide care for the child on a daily basis.

Now, what do we mean by this? We aren’t saying that you’re obligated to do every single thing for your child alone and we aren’t implying that you should spend every waking moment with them. Instead, the Court will weigh both parent’s involvement with the child.

  • Which parent typically helps the child with their school work?
  • Who takes and picks them up from school?
  • What about doctors appointments?
  • Which parent established and maintains the children’s routine?
  • Which parent can identify and treat a child’s illness?
  • How long has a parent been the primary caretaker for the child?
  • Did one parent start spending more time with the kids because of an ongoing custody battle or has their involvement been consistent throughout the child’s life?

It’s also important to know that the Court will look at the quality of time spent with the child, not just the quantity of time, as well as both parents’ ability to put the child’s needs before their own.

2. Keep Kids In School

This one seems like a given but you’d be surprised at how many parents fall short with this rule. We have witnessed parents withdraw their children from school because of litigation. Some parents may believe that if they take their children out of school, it will give them an advantage with their children, even if not with the Court. The truth is, they couldn’t be more wrong.

Permanent Withdrawal from School

One common mistake that parents make is to suddenly withdraw their children from the school for which they have been enrolled (prior to filing the lawsuit) in order to “hide” or alienate the children from the other parent. In cases like these, the parent will even go as far as to relocate and enroll the children in a different school without disclosing that they have done so (or the location of the new school) to the other parent.

Typically, a standing order or injunction is in place in pending litigation which prohibits parents from withdrawing the children from school.  Violations to standing orders and injunctions can result in serious consequences in Court and be detrimental to the overall outcome of custody litigation for the violating parent.

In instances where no order or injunction prohibits a litigant from withdrawing the children, it is still typically ill advised to disrupt the children’s routine. Such acts may be frowned upon by the Court if there is not a valid reason for doing so. Certain instances may warrant a change in the children’s’ school, for example a child has special needs that the school can’t accommodate and the child’s treatment team or developmental pediatrician is recommending another school or program.  However, even in this instance, there are legal mechanisms to effectuate this change through the Court system so it’s imperative that you consult with an attorney before making such a serious decision that could potentially impact your case.

Repeated Unexcused Absences and/or Tardies

Another commonly made mistake we see in custody litigation is a parent allowing their children to accumulate unexcused absences or accumulate multiple tardies in school. Since Texas has mandatory attendance laws, parents and their children can face serious consequences for the failure to adhere to these laws. More importantly, in regards to custody litigation, the Court could look at this situation and determine that the parent is not prioritizing the child’s education or consider whether there are other parenting issues occurring in that home that prohibit the family from waking up and getting the kids to school on time.

We can all agree that good attendance is important for many reasons and the Court will likely feel the same way. One reason that your child should have good attendance is so that he or she can get the maximum benefit out of their education. Moreover, numerous studies show a strong link between academic performance and consistent attendance. As with so many of the parenting issues discussed herein, Court’s want to see that parents are consistent in providing their children with a dependable routine.

Absences Excused by Texas Law

Although we hope that our children are able to go to school every single day that instruction is given, the reality is that this is not always possible. Sometimes, you have no choice but to keep the child out of school on occasion for his or her own best interests. School districts are required to excuse a student’s absence for reasons listed in state law, such as to:

  • Observe a religious holiday
  • Attend a required court appearance
  • Serve as an election clerk
  • Attend a healthcare appointment

The Texas Education Code describes these reasons in greater detail and lists additional statutorily excused absences. Each school district has its own criteria for determining what else would be considered to be an excused absence. Generally, an absence may qualify as excused in cases of:

  • Personal illness (usually a doctor’s note is required)
  • Death of an immediate family member (we have seen some schools request copies of the obituary for said person)
  • Medical treatment

What is the 90% Rule ?

In addition to Texas’ mandatory attendance law, most school districts are required to enforce the 90% rule, which states that students in grades K-12 must attend class for at least 90% of the time it is offered in order to receive credit or a final grade. This rule applies to all absences, including excused absences. If the student doesn’t meet this requirement, an attendance committee or board may grant the student credit or a final grade, depending on the circumstances.

The Texas Public School Student Handbook explains guidelines on absences, tardies, and making up missed schoolwork. Becoming familiar with your school’s policies will help you manage your child’s attendance and ensure that he or she avoids too many missed school days. Each student handbook will explain your school’s guidelines on absences, tardies, and making up missed schoolwork. Becoming familiar with the school’s policies will help you manage your child’s attendance and ensure that he or she avoids too many missed school days.

3. Demonstrate that You Provide a Safe Environment

The Court will want to feel comfortable that the children are safe while in your custody. That means that if your new boyfriend has been convicted of a sexual crime or if your new girlfriend has been convicted for multiple DWIs, the Court will likely order or enjoin the new paramour from having access to the child. That also means that if you have a history of alcohol or drug abuse, you will need to demonstrate to the Court that you are on a constant and consistent path to recovery.

4. Be Stable

If you want to win your custody battle, you’ll likely need to show the Court that you (and your household) are stable. Courts will attempt to cause as little disruption to the children during litigation and this will help put the Court’s mind at ease. Are you a person that switches your job often?  What about where you live?  Do you move homes frequently?  If you have any type of mental and/or physical illness or disability, do you receive regular treatment?  If you are on medication prescribed by your doctor, do you take them as prescribed?  The Court will look at answers to these questions when determining how financially, emotionally, and/or mentally stable you are when considering what are in the child’s best interests.

5. Don’t Alienate the Other Parent

Parental alienation takes place when one parent isolates and turns a child from the other parent. In a way this takes us back to Number 2 since some parents switch the child’s school in an effort to hide the child from the other parent. However, there are other ways, as we are sure that you can imagine, that parents alienate the other parent from their children. Here are some common signs of parental alienation though there are many more:

  • Withdrawing the child from school without informing the other parent;
  • Speaking ill about the other parent (and/or their family) to the child or in earshot of the child;
  • Taking away the child’s phone in an effort to prevent them from communicating with the other parent;
  • Refusing to disclose the location/whereabouts of the child without good cause; and
  • Attempting to or coaching the child to be against the other parent or to live with you.

Courts would like to facilitate a positive relationship with both parents if possible. Therefore, if you interfere with the goals of the Court by engaging in this behavior, it could really count against you the next time that you are in front of a Judge (or jury). With this in mind, if you have a Court order regarding which parent should have possession and access to the child (and when), you should follow the Order to the letter, that is unless you and the other parent both agree to deter away from that schedule.

This issue is a very serious one and deserves its own guide. So we wrote one.

6. Keep Your Children Out of the Litigation (if possible)

This tip is so important that we decided to dissect and explore this tip a little more. Again, Courts do not like for children to have involvement in the drama between you and your ex. Instead, the Court will seek the route that has as little disruption (and confusion) to them as possible. We have witnessed clients intentionally involve the children (subject to the suit) in the case by directly speaking with them about the case just as we have had clients merely speak about the case where the child can hear them. Both are frowned upon by the Court.

Involving your children in your case will likely cause them stress and confusion as they will typically attempt to “pick a parent” or at least take a parent’s side over the other. This can be emotionally traumatic for any child, especially if both parents are discussing the litigation where the child can hear.

You’ll want to also be careful of giving away any indication that you are “fighting” with your ex or that your opinion is a bad one of him/her as well.

7. Pay Your Child Support on Time

A major tip is to pay your support on time. That means that if you have been ordered to pay child support or even spousal maintenance/support, you should really strive to pay it and pay it on time. This will demonstrate to the Court that you are compliant with Court orders as well as your ability to financially provide for your children and/or spouse. In addition to that, you could suffer serious consequences and setbacks in your case if you fail to do so. The other party can also sue you for the failure to pay the support as ordered and seek monetary relief (the past due amount plus interest) and/or seek jail time in an action called an Enforcement. With this in mind, you should be sure to pay the support by the due date, in the manner ordered.

This means that child support payments should be paid directly to the Texas Child Support Disbursement Unit. DO NOT PAY THE OTHER SPOUSE DIRECTLY or you will likely risk not receiving credit for the support paid. We’d argue that a vast majority of orders for child support will even have a provision which states that you will not receive credit for any “informal” payments to the other party. Spousal support payments are typically made directly to that spouse but you should consult with your attorney prior to making your first payment about how to submit the payments.

Note**: If you were ordered to pay a certain amount in support for which you can no longer pay due to a loss of employment and/or income, you should speak with your attorney about seeking a reduction in your support amount. DO NOT UNILATERALLY decide and/or merely pay what you want.

8. Try to Co-Parent…Even When You Don’t Want To

We know, this tip is one that can be one of the most difficult. In fact, many relationships end due to the constant disagreement regarding how to raise their children. So, we understand that sometimes it is a struggle for the parties to get along. However, we would say that Courts tend to be impressed or at least more complacent when they see that the parents can work together when making decisions regarding the children.

Now, we want to be clear: this does not mean that you have to give in to everything that the other party wants. Instead, we are suggesting that it is better to compromise on as many issues as possible (without the necessity of Court intervention). With this in mind, you should refrain from fighting with your ex as much as possible regarding the children. If you believe that your ex is the one that is contentious, it may be best to refrain from communicating with them regarding the children and to instead have your attorney communicate with theirs (if they have one). Either way, if you and the other party are having trouble co-parenting you should consult with your attorney regarding the best way to approach this issue. This will help ensure that the Court gets the right impression: that you are trying to co-parent (even if the other parent does not want to cooperate). This will go a long way with the Court when deciding how much possession and access to the children each parent should have.

9. Act in the “Best Interest of the Child”

At All Times This one seems like a given, but still it doesn’t come naturally to everyone. During a custody battle, you can be sure that emotions are high. That makes sense because the stakes are so high. With that said, we have witnessed clients act in their own best interests without acting in the best interests of the child. Let’s go back to our Parental Alienation example. If a parent is keeping the child away from the other parent merely because he or she is upset with their ex, this is not in the best interests of the child. Another common example is the mere failure to act when the parent should. An example of this could be if the child is obviously sick and a reasonable person would take the child to the doctor but that parent fails to do so. A good “rule of thumb” would be to think to yourself, is this what is best for my child?” prior to making any major decisions that could impact your case (or your children).

10. Show The Court Your Best Self

This tip is equally important. You have to remember: the Court won’t know you, your spouse, or even your children. At first, the Court will perceive who the parties are based on what is written in black and white on your pleadings. The Court won’t form a real opinion about who you are as a person, and most importantly as a parent until the Court “meets” you. The Court will familiarize itself with the allegations of the case, pending issues between the parties, as well as observe the actions of each party. The Court may and likely will consider evidence regarding the parties’ character and stability (as mentioned above). With this in mind, we strive to paint the best (and authentic) picture of who our client is to the Court so that it is known that it would be in the child’s best interest for our client to have the possession of and access to the children as we have requested.


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Brian and his staff were great. Brian’s direction and expertise provided me with the legal information relevant for my needs over several years now. He listens and is steadfast which gave me comfort in the courses of action. I highly recommend him.Brian and his staff were great. Brian’s direction and expertise provided me with the legal information...

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