Can I Get Custody of a Child Who is Not My Own?

Blended FamilyBlended families–those that include step-children, such as his, hers, and ours–are becoming more and more part of the social norm, particularly since the divorce rate continues to increase. It is natural for step-parents to develop a bond with their step-children and to want to continue a parental relationship even after they divorce from the biological parent. However, non-relatives are very limited in their right to seek custody of a step-child or be appointed as the child’s conservator.

The Texas Legislature recognizes the fact that under special circumstances a non-relative can be involved in a child’s life enough to be entitled to seek rights that biological parents and other relatives have.

The guidelines follow alongside most of the rules required for grandparents to seek rights to visit or obtain custody. More specifically, if a step-parent has “actual care, control, and possession” of a child for at least six months, he or she can file a petition to seek conservatorship of the child. Such a petition must be filed within 90 days of the child leaving the petitioner’s care, control, and possession. In this case, actual control is still the subject of conflicting appellate rulings, but generally refers to the step-parent having power or authority to guide and manage the child.

The same can be true if a child of a friend or relative has lived with you for the last six months while attending school with your children, and that parent is not able to take the child back into his or her custody, such as due to death, illness, incarceration, financial difficulties, etc. In this situation, you do have the right to file a petition for managing conservatorship of the child. These conservatorships are often temporary and do not require the biological parents to terminate their rights, but they provide you with the rights and authority you need to legally make decisions for the child’s care, possession, and upbringing.

Military Service Members, Contractors and the Texas Family Code

As we approach almost a decade of military engagement in Iraq and Afghanistan, the sacrifices of those fighting for our country are becoming more apparent in the justice system. From the creation of specific courts for our veterans to the complexity of issues surrounding benefits through the Department of Defense and the Veteran’s Administration, the legal questions are numerous and growing. Family law is no exception. To add to the legal complexity, many functions of the United States Armed Forces which were previously undertaken exclusively by the branches of the military, are now undertaken by military contractors.

Increasingly, service members and contractors are faced with an additional sacrifice when they find themselves in a dispute over the conservatorship and visitation of their child during a tour of duty. In 2009, the Texas Legislature enacted legislation addressing many of the issues that can arise within a family when one parent is on military deployment. One glaring absence within the new legislation, however, is the treatment of military contractors.

The ambiguity lies within Texas Family Code §153.701, which does not define exactly who a “service member of the armed forces” is, but does, however, refer to “military deployment” as “serving in an active-duty status to another location in support of combat or some other military operation.”  Arguably, this definition should encompass military contractors as well as the traditional United States Armed Forces, engaging as they oftentimes do in missions which are identical to those undertaken by the Armed Forces a generation ago.

Unfortunately, we don’t know with certainty if the Texas Family Code does apply to military contractors in the same way that it applies to the traditional armed forces. Being just over two years old, the law is too new to have produced definitive rulings from high courts on its interpretation.  What this means is that for now, military contractors must continue to share the sacrifice of the protection of our nation, but when it comes to issues of child conservatorship and visitation, they may not share in the benefits afforded to the military in the Texas Family Code.

What do I Need to Know about Child Custody?

Before you start thinking that your divorce is going to need a Court adjudicated (decided by the Judge) child custody schedule, know this first: you will only need one if you and your spouse cannot come to an agreement about your child custody situation. If the parents can construct an agreement that they’re both happy with, then there is no need for court involvement. If you and your spouse cannot agree, then here is what you can expect from the child custody process.

First, your attorney has to file a motion–either included in the divorce petition or separately–to start the process. The filing parent must notify the other parent at the time of the filing, and then the other parent gets a finite time to respond with their own filing. Eventually, the parents will have their day in court to discuss the issues, but until this time, the child is not left in limbo. One or both parents will ask the Court to enter Temporary Orders providing for the temporary conservatorship, possession, support, and medical costs of the child.

It is rare in a true “custody battle” that the parents can agree on Temporary Orders, as neither parent wants to give the other parent a perceived or real advantage by having primary possession of the child while the custody case is being litigated, however, sometimes it is possible.  Often, in these cases, when there is an agreement, the parents reach it by agreeing to a 50/50 plan so that neither parent has more time with the child than the other. Absent agreement, the parties can present their proposed temporary plan to the Court in a temporary hearing. This can result in litigating the custody issue twice, both at temporary and final hearings, and can be extremely costly.

However, if a temporary agreement is reached, be advised that your temporary orders should be finely crafted and express exactly what you want, especially in terms of the visitation schedule. Temporary orders often become permanent, because the divorce and/or child custody process takes a long time. The minimum time is around 4-6 months, and if your case has a high amount of conflict, it could take up to two years. Long standing temporary orders have a way of becoming permanent because, after years of following the schedule, the Courts could take an “if it ain’t broke, don’t fix it” approach and adopt a final order that closely resembles what the parents have been doing.

For lots of reasons, Courts prefer that child custody issues be resolved by agreement, often in mediation, which brings in an unbiased third party into the mix to help both sides reach an agreement. Mediation helps reduce the amount of conflict between parents over children, thereby reducing stress on the children during this emotional process. In cases where it’s appropriate, the Collaborative Law process may be a better alternative to traditional mediation. If negotiations break down in mediation, then the issues will go before the court in trial. If this happens, then your case will definitely fall into the lengthy category.

The biggest lesson and key in child custody is to do everything you can to agree with the other parent on at least part of the child custody issues. It’s better for the both of you, for the child (most important), for your time, and your overall costs.