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Mark D. Dunn
Attorney at Law
Plano Tower
101 E. Park Blvd., Suite 600
Plano, TX 75074
(972) 516-3864
FAX: (877) 527-8913

Family Law/Civil Litigation Practice in Dallas County and Collin County (Texas)

CUSTODY CONTESTS


The Texas Family Code says that in any custody case, the guiding principle is the best interest of the child. This applies if the "contest" is between the two parents. If it's a non-parent vs. a parent for instance, where the grandparents want custody then the question is, "Would it significantly impair the child's physical health or emotional development if a parent got custody (sec. 153.131, Texas Family Code)?" There is a legal presumption that a parent should have custody of his own child. In other words, the grandparent or aunt who wants custody has two strikes against him; if it's parent vs. parent, they start off on a level playing field.

The Texas Constitution (Article I, Section 3a) states that there is no gender discrimination. This means that the father is NOT at a disadvantage if he seeks custody of his 2-month-old son; there's no such thing as a "tender years doctrine." The law sees him as being on exactly the same legal footing as the mother.

Up until 2011, the law in Texas allowed a child age 12 or older to file a written statement (called a "Choice of Managing Conservator") which told the Court which parent he'd prefer to live with. It wasn't binding on the Judge (or jury), but it was one of the factors to be considered in the case.

Under current law, there is no "written election" that a child can file with the Court.   It is possible to ask the Court to interview a child in chambers, but some Judges just won't do it.

There is no age at which a child can "choose which parent he wants to live with."

Child custody can be a jury issue. "Visitation" (the actual terms and conditions of access to the children) is still decided by the Judge not the jury. One party may "win" the jury verdict, but the Judge can then award possession on a 50-50 basis. And the Judge (not the jury) sets child support.

The legal fees for a full custody fight can exceed $25,000.00, and I'll get a large retainer up front.

Often the difference between the "parenting abilities" of the two parents is very subtle and is difficult to prove. In a "close case" (which many of them are), you may have to hire a psychologist to evaluate the parties, and testify for you at trial. This will cost several thousand dollars.

To prove what is in the best interest of the child, you want to show (1) what is GOOD about you as a parent and (2) what is BAD about the other parent. Some of the factors are:

      1. which parent has participated in the children's activities;

      2. which parent attends most of the parent-teacher conferences;

      3. any aspects of a parent's past which reflect negatively on him, such as suicide attempts, mental illness, criminal convictions, alcoholism, chronic health problems, family violence, or drug addiction (these would be things that happened SINCE the last order, not PRIOR to the last order);

      4. the ages of the children (very young children may be "closer" to their mother).

At trial, when there's evidence of conflict between the parents, the Judge and the jury are going to be trying to figure out who started the fight. Was this conflict really necessary or important? Was one of the parents just being stubborn, and using the children as a weapon against the other parent?

Custody contests almost always involve a "social study." In Dallas County, the fee for the social study is set by the Judge. Usually he orders each party to pay 2% of his "net resources" (which is basically net income after taxes), with a minimum fee of $250.00. The study is conducted by Family Court Services. A "social worker" will visit you in your home (and visit the other party in his home) and gather information about your situation, employment, and background. This social worker then writes up a report and sends it to the Judge. The social worker can also testify at your trial, and his opinion carries a great deal of weight.



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Disclaimer (the fine print)

The information on this website is not legal advice, and it may not be applicable to any specific set of facts ... especially your own personal situation. The perusal of this website does not establish an attorney-client relationship. You should consult an attorney for advice regarding your individual situation, and I invite you to contact me; I welcome your calls and emails. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me. I am an attorney licensed by the Supreme Court of Texas to practice law in all State courts and certain Federal courts, but I'm not board certified by the Texas Board of Legal Specialization.