custody battle

What is a "custody battle"? Usually that means a legal scuffle over the primary residence of a child. It can also mean a fight over the time that a child spends with each parent. Sometimes parents disagree over decisions (medical, school, religous, etc.) and go to court over that. There are other reasons as well that parents find themselves in lawyer's offices: grandparent rights, substance abuse, moving restrictions and more.

I'll go over the main types of custody battles, and some of the factors that go into winning each kind.

In each case, having the right lawyer is critically important.

  • First, a smart and honest lawyer will keep you from fighting a battle you won't win.
  • Second, a good lawyer can make the difference in winning a close case.
  • Third, an experienced lawyer can make the whole process much less stressful for you.

The most fundamental type of custody battle is a disagreement over which parent gets to set the primary residence of the child. This is important not only so a child has a 'home base' but also for choice of public school. Courts tend to want to keep the child in the same home as they have been living in, at least for a year or so, after the parents split up. For this reason, there is often a fight at the beginning of a case over who gets to stay in the house.

Normally the parent who establishes the primary residence will have a 'domicile restriction' as well. This is a limit on where they can live with the child. I've seen these be as narrow as a particular house, or as broad as the whole USA. Fairly typically the parent is restricted to the county where the divorce was filed, or the contiguous counties. Sometimes the whole State of Texas is the domicile restriction.

Domicile restriction cases can be some of the most difficult to deal with. A typical situation is that a wife will want to move nearer to her family after a divorce. In cases where she is clearly the primary parent and she does not have a good job, this can be a difficult choice for a Court. If the Father is very involved and doing what he should be (paying child support, using his possession time, etc.) then it is difficult to justify moving the kids away from their Dad. Another major factor in these cases is the age child. If the child is 16, then a Court might just make the Mother wait 2 years. If the child is 2 years old, then there is a better case for the Mom to move. Either way, these are very difficult cases, and often cannot be settled.

The primary residence of the child will be based on a number of factors: which parent has provided most of the child's care, whether any parent is impaired from proper parenting; where the child has been living, the quality of the schools, proximity to friends and family, and other factors.

Custody battles also can be over the exact times and dates of possession by each parent. Many parents start out wanting a 50/50 split in time, but the State of Texas discourages this. Instead, Texas Family Law favors something called a "Standard Possession Order". This is basically: every Thursday; every other weekend; 30 days in the summer; and alternating major holidays. If the parties agree to something else, fine. But absent an agreement, most non-primary residence parents are going to get the Standard Possession Order. There are variations on it, but what I've outlined above is what is usually is.

Grandparents and other family members can sometimes intervene into custody guradianship (or start them themselves). I've covered this subject elsewhere.

Overall, a custody battle is a very expensive, time consuming, stressful and difficult undertaking. They should not be taken on lightly. However, they are common because children are so important, and making sure that they are raised properly is so important.

What are the 5 Steps in Every Texas Family Law Case? Click here to download.