The question of who will have primary custody and make critical decisions for the children is obviously the most emotional and stressful for parents seeking a divorce. We deal with custodial issues with the utmost care and concern, always mindful that we are charged with the mission of making sure that the arrangement we negotiate is “in the best interests of the child or children.”
Texas is the only state in which, if a divorce case goes to trial, a jury—not the judge, not some “administrator”—may determine which parent will have primary custody of the children. Therefore, it is essential that your attorney thoroughly understands the unique facts of your case, has extensive experience trying cases before a jury, and can help you establish the main themes of your argument and support them with effective, credible reasoning and evidence.
PREPARING A CUSTODY CASE USUALLY ENTAILS SEVERAL PRIMARY STAGES:
Understanding the history of the case, which means reviewing all relevant evidence including texts and emails, interviewing witnesses—family members, teachers, counselors—and gathering records such as physical and mental health records. Making sure that you have an organized and disciplined plan for ensuring the well being of your children.
Establishing temporary court orders for custody and visitation while the case is proceeding.
Undergoing a court-ordered custody evaluation. An amicus attorney is often appointed by the court to help the court determine the best interests of your child or children. Some deference will be given to the preferences of an older child, but his or her wishes will not absolutely control the outcome.
Completing the divorce process through mediation, arbitration, negotiation, and ultimately litigation, if you and your spouse cannot arrive at an agreement through negotiation.
Even if you hope and expect to arrive at decisions concerning custody through negotiation, if a trial should become necessary, it is best to have a firm working for you such as the Law Office of Robert Hoffman where the lawyers are highly experienced in litigation. If your spouse and his/her attorney know that your lawyers are experienced trial attorneys with a track record of success, this may also help move negotiations forward to a positive resolution.
Some specific considerations:
“HOME STATE”
Often arguments arise as to where child custody disputes should take place. Which of two or more states where the child has resided should be considered the child’s “home state”? The “home state” in a divorce/custody case is where the child has lived for the last six months, not where he or she has lived for the longest amount of time. If the child has not most recently lived anywhere for a full six months, then the “home state” will be where the child has the most significant ties. Foreign locales may be eliminated for consideration because they are considered an “inconvenient forum.”
VISITATION
A 50/50 division of the child’s time spent with each parent is usually not practical, nor is it an arrangement generally ordered by a court. Usually children will need to stay in a primary home during the school week and visit the other parent on the weekends. In some cases visitation with one parent may have to be supervised by court order because of claims of abuse or other issues.
We believe helping you gain custody of your children in a divorce case is a solemn and serious responsibility. We also believe it is our mission, as much as is possible, to bring an element of civility and compassion, and certainly of calm professionalism to your challenging situation and, above all, to fight hard for you and your children and to represent your story as effectively and as powerfully as possible.
Let us know how we can help.
