Question:   How can we change the custody arrangement set out in the existing custody order?

Answer: The name of the action to take in this situation is a Motion to Modify, which is necessary to change the custody arrangement and the child support. The Texas Family Code provides that a child may sign an affidavit of choice of conservator at the age of twelve. This is only one piece of evidence, and the court will still determine what is in the best interest of the child. Of course it becomes a bigger piece of evidence the older the child gets.

Question:   What evidence does the court need to determine which parent should be the primary parent?

Answer: Texas law presumes that awarding the parents joint custody of the child is in the best interest of the child.  On the issue of evidence to prove which parent should have the right to determine the primary domicile of the child, which is known informally as "primary custody,” this depends on a number of factors.  The court will inquire into who has been the primary caretaker of the child, what the living arrangements are, who has been putting the child to bed, taking him to the doctor, making dinner, involving the child with appropriate people, bad decisions made by either or both parents, the existence of a pattern of family violence (if any), the work schedules of the parents, earning capacity of the parents and so on.

The court may also involve other professionals in the custody evaluation.  These professionals are most frequently psychologists, counselors, social workers, psychiatrists or lawyers.  Generally speaking, the court would order a social study into the specific circumstances of the parents' homes which would be performed by a social worker or psychological professional. Additionally, a psychological evaluation of either or both parents may be ordered. An attorney may be appointed to represent the interests of the child, if the court has a concern that the child's interests are not adequately represented.

Courts still tend to lean toward mothers for custody of younger children, but men are gaining ground in custody battles if they can show they are attentive nurturing parents.

Question:  What are the chances a father would be awarded primary custody of his child?

Answer: Texas law presumes that awarding the parents joint custody of the child is in the best interest of the child.  On the issue of a father's chances of obtaining the right to determine the primary domicile of the child, which is known informally as "primary custody,” this depends on a number of factors.  The court will inquire into who has been the primary caretaker of the child, what are the living arrangements, who has been putting the child to bed, taking him to the doctor, making dinner, involving the child with appropriate people, and so on.  Courts still tend to lean toward mothers for custody of younger children, but men are gaining ground in custody battles if they can show they are attentive nurturing parents.

Question: What are factors involved in modification of custody?

Answer: Factors for custody involve what is in the best interest of the child, who has been the primary caretaker of the child, the results of a social study into the circumstances of the child, among others.  The name of the action in court is a Motion to Modify, which is necessary to change the custody arrangement and the child support.

Another issue is the age of the child.  The Texas Family Code provides that a child may sign an affidavit of choice of conservator at the age of twelve.  This is only one piece of evidence, and the court will still determine what is in the best interest of the child.  Of course it becomes a bigger piece of evidence the older the child gets.

Question: What are the factors involved in a relocation of address?

Answer:  Relocation issues are very common in family court now.  If a domicile restriction is in your last order, you may request the court to lift it under certain circumstances.  The inquiry by the court involves whether the move is in the best interest of the child.

If the court agrees with you, there will be other considerations, such as who will pay for travel expenses for visitation of the child with the other parent.  The Texas Family Code presumes that it is in the best interest of the child for the "moving parent" to pay any increase in the cost of travel occasioned by the move.

On the other hand, if there is no domicile restriction in the decree, the other parent may ask the court to impose one.  This is frequently granted by the court if the non-moving parent has been involved with the child, pays child support, has a close relationship with the child, etc.

Question: What if I don't want the other parent to move away with the child?

Answer:  Relocation issues are very common in family court now.  Regardless of the existence or not of a domicile restriction in the decree, the non-moving parent may ask the court to impose one.  In fact, the court will entertain a hearing to determine if it is appropriate to issue a Temporary Restraining Order to prevent an imminent move on pretty short notice.  This is frequently granted by the court if the non-moving parent has been involved with the child, pays child support, has a close relationship with the child, etc.

Question: Does the non-custodial parent get standard weekends in the summer in addition to the extended summer visit?

Answer:  Yes, the first, third and fifth weekends do continue for the non-custodial parent in the summer, except for the extended visit for the custodial parent.  In other words, both of you have the right to take a vacation with the child, taking a weekend from the other parent (but not father's day weekend).  But the non-custodial parent has first choice of the summer.