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A Guide To Child Custody And Visitation Rights In Texas

Insights from board-certified family lawyer Mary Neal
Photo courtesy of Albin Oldner Law

Mary Neal is a board-certified family lawyer practicing in Collin, Denton and Dallas Counties primarily.  Her practice includes divorce, high-conflict child custody, terminations/adoptions and child support cases.  Mary has been selected as a Rising Star since 2019 and has been additionally selected to the Rising Star “Up-and-Coming 100” Texas lawyers list and the “Up-and-Coming 50 Women” Texas lawyers list.

Drawing from her extensive experience as a board-certified family lawyer, Mary Neal sheds light on the intricate landscape of child custody and visitation in Collin, Denton, and Dallas Counties. 

What factors are considered when determining where the child should live primarily?

Fortunately for family law practitioners, the appellate courts in Texas have given guidance to attorneys and parents in helping to determine what is in the best interest of the child. These include considering the emotional and physical needs of the child and conversely the emotional and physical danger of a parent to the child. It also considers the parenting abilities and their plans for the child, along with any acts or omissions of a parent that can indicate the safety and stability of that parent-child relationship. 

Importantly, in our more high-conflict child custody matters, we often see that the courts want to know what the parent is doing to encourage a relationship with the other parent. For instance, recently a jury in Collin County returned a verdict giving a parent primary custody of a child after significant evidence was provided that showed the other parent had been engaging in acts to attempt to get the child to no longer like her other parent.

Is it true that a court is more likely to give primary custody to a mother?

Absolutely not. In fact, our Texas Family Code specifically states that gender cannot be considered when determining conservatorship and possession. A lot of times, the courts want to keep a status quo of how the family dynamics were during the marriage or while the parents were together. So, if dad was a stay-at-home dad, it is very likely he will be named the primary parent. When the parents have pretty closely shared the child's duties, it comes down to the factors addressed above.

What can a parent do when a child refuses to visit the other parent?

First and foremost, if a court order is in place, you absolutely need to follow the possession schedule as stated in the order. Unfortunately for the child, he or she does not get to dictate when they will see their parents provided everyone involved has not come to an agreement about it. But, importantly, you as the parent have the potential of being put in jail by a court if you do not continue abiding by the court-ordered possession. 

How can parents effectively communicate and co-parent in the best interests of their children despite the challenges of divorce or separation?

Even in the most peaceful of separations, there will come conflict about decisions for the children or alterations to possession schedules. We often encourage our clients and the parties to cases to take a co-parenting class, which can be offered online or in person. In fact, some courts in the area require it. I see the most success in effective communication and co-parenting when the parents are able to stay child-focused in their decisions and communications, instead of thinking selfishly about how the conversation or decisions may affect them personally. But, when it is just not possible to keep communication healthy, we will often encourage the parties to use a co-parenting app that allows the parties to message each other and update the child’s calendar for easy access for both parents.

What can a parent do when they have concerns about drugs or alcohol?

Most importantly, if you are concerned about your child’s safety due to the other parent’s use and/or abuse of drugs or alcohol, ensure that you never leave your child alone with that parent. Of course, if it is to this point, you need to schedule a meeting with a lawyer as quickly as possible to move forward with obtaining a court order that can ensure your child’s safety if and when they are to visit with the other parent. 

What can a parent do when mental health issues arise for a parent or a child? 

When a parent starts exhibiting signs of a mental health episode, or worse, has a diagnosis that they have decided to stop treating, concerns for the child’s safety can be paramount. I hear pretty often concerns of a parent exhibiting traits of a narcissist, which can cause serious problems with co-parenting and can even have lasting effects on the child. However, more serious cases will occur when a parent with bipolar disorder is not medicated and has symptoms that can place the child in harm’s way. The courts have the ability to issue emergency orders to stop possession schedules in extreme circumstances. If a parent has not been diagnosed, a court also has the ability to order the parents to undergo psychological evaluations to determine any diagnoses and how those diagnoses may affect their ability to parent.

Is it true a child can determine where they live at 12 years old? 

Not really. Our Family Code does allow a child to speak with a judge about their wishes regarding who they want to live primarily with and a possession schedule, but their wishes are not required to be met by the judge. If a parent asks for this, it is only required by a judge once the child is at least 12 years old.