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HOW DOES A JUDGE OR JURY DECIDE WHO GETS CUSTODY?

Your kids are important to you so I'm sure that you want to know how you can get or keep custody. Many clients often worry about how a judge or jury would decide on which parent would be awarded custody. It is important to point out that by “custody,” most people mean which parent gets to determine the primary residence of the child. In other words, which parent will the child live with? As for which parent is awarded this right, the Family Code dictates that a judge or jury shall be guided by the child’s best interest.  [Tex. Fam. Code § 153.002.] A judge or jury cannot discriminate based on gender or marital status. Instead, the court will examine several other factors to determine what is in the child's best interest. 

Factors That Judges & Juries Consider When Considering the Best Interests of the Child

There are a wide variety of factors that can go into a “best interest” determination.  The Texas Supreme Court has set forth the following factors as guidelines for courts:

  1. the desires of the child - this typically applies to children aged 12 and older; 
  2. the emotional and physical needs of the child now and in the future;
  3. the emotional and physical danger to the child now and in the future;
  4. the parenting abilities of the individuals seeking custody;
  5. the programs available to assist those individuals in promoting the best interest of the child;
  6. the plans for the child by these individuals or by the agency seeking custody;
  7. the stability of the home or proposed placement;
  8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and 
  9. any excuse for the acts or omissions of the parent. 

 

These factors are not exhaustive, but they weigh heavily on a judge or jury. No matter what evidence you have for your child custody case, you must have an effective attorney who can present the evidence to the judge or jury for you to win custody of your child.  It is important to find a lawyer who has experience dealing with child custody issues and is comfortable presenting evidence in a courtroom to convince a judge of who should have custody of a child. 

Jurisdiction and Your Child Custody Case

Jurisdiction is a fancy word for "power". Jurisdiction determines whether a court can even hear a case. A court must first have personal jurisdiction (i.e. power) over the parties. Even if you and/or the other parent want a specific court to hear your child custody case, they must have both personal and subject matter jurisdiction to do so. This means that they must have the power over the parties so that the Court's order(s) will be binding and it must be in a court that can hear your type of case. In this video, Board Certified attorney Brian D. Walters discusses how parents can determine the correct jurisdiction in which to file their case. He explains that the rules basically correspond to where the child has been living for the past six months. While this decision may be very straightforward for many families, certain situations may make determining jurisdiction a more complex process.