DIFFICULTY: Legal assistance is recommended
Initial Filing Fee: $15
Custody issues come in a variety of shapes in sizes, one of the most common being divorce. In a divorce, Texas law favors mutual custody, in one form or another. There are always exceptions, however, and the actual judgment varies from case to case. You are allowed to file for custody in Texas if you meet any of the following criteria:
• You are the child’s parent, guardian, conservator, or legal representative.
• You are the child’s alleged father.
• You had physical custody of the child for at least six months.
• You have lived with the child and the child’s parent, guardian, or conservator for at least six months and the child’s parent, guardian, or conservator has died.
• You are the child’s foster parent.
• You are the child’s close relative and the child’s parents have died.
• You are the child’s prospective adoptive parent.
Filling for conservatorship in Texas, which is what their courts call custody, generally falls under two forms: contested and uncontested. In a contested case, such as a divorce, a judge will hear all the evidence in court and make a custody decisions based upon the best interests of the child. In Texas, the courts generally try to establish joint mutual custody, when both claimants have at least some custody of the child, rather than giving full rights to a single person. There are always exceptions, however, and the actual results vary from case to case. In an uncontested case, such as when a father wants to establish paternity with the mother’s approval, the case is simply a matter of filling out the forms, showing up to court with your agreement, and having a judge approve it. When a child moves out of state, you cannot file for custody in their new state until they have resided there for at least six months. If they have not been there long enough, you file the case in Texas. Finally, if the child in question is an American Indian, however, there are several other considerations that must be made in order to keep in line with the Indian Welfare Act of 1978.
Step 1: File a Petition to begin the SAPCR (Suit Affecting the Parent-Child Relationship)
Whether the case is contested or uncontested, the suit begins with one party submitting a petition to the court. This should be done in the county in which the child resides. Once the petition is submitted, the two parties are referred to as the Petitioner and the Respondent.
Step 2: Petitioner’s Supporting Affidavit
If the Petitioner feels they need special orders for their case, such as keeping the Respondent away from the child, then they need to submit a Petitioner’s Supporting Affidavit. For this Affidavit, the person who claims to have seen or to know the truth of what is mentioned by the Petitioner must sign the form in front of a notary.
Step 3: Serving the Respondent or Signing a Waiver
Once the petition is filed, the Petitioner is required to provide, or serve, the Respondent a copy of the petition so that they know about the case. In uncontested cases, the other Respondent can prevent this section by signing a waiver of citation saying that they do not need to receive the information.
Step 4: The Respondent Answers
If the Respondent wants to be involved in the court proceedings, then they need to fill out and submit a response form. Otherwise, the case can proceed without hearing from them or informing them of what is going on.
Step 5: Final Hearing or Judgment
In an uncontested case the Judge will look at the requests and rule, likely in favor of the petitioner. In a contested case, a hearing date will be set and the case will be heard by a Judge. When scheduling a hearing with your courthouse, make sure to allow enough time to give the Respondent at least 45 days warning. Whatever the type of case, however, you also have to fill out an Order in Suit Affecting the Parent-Child Relationship. With uncontested cases you will bring this already filled out to the Judge, while in contested cases it will be filled out at the court.