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How Do Courts Determine Custody?


As a parent, your children and their ultimate custody likely represent your major concerns about your upcoming divorce. Texas law allows you and your spouse to come up with your own custody and parenting time arrangement, but should you fail to reach an agreement, the court will decide these issues for you.

FindLaw explains that the best interests of your children constitute the primary consideration of any judge determining custody. To ascertain this, (s)he will look to such factors as the following:

  • Do either you or your spouse have a medical or mental health condition that makes you an unlikely candidate for child custody and care?
  • Do either of you have a problem with alcohol or drugs?
  • Has either of you ever abused the other and/or neglected or abused your children?
  • Do either of you have anger control issues?
  • Do either of you have job commitments that make you unavailable to your children for significant periods of time?

Custody hearing evidence

In addition to addressing the above listed concerns at your custody hearing, you also should prepare yourself to show the judge that you rather than your spouse served as your children’s primary caregiver during the marriage. For instance, you may testify or otherwise enter evidence showing the following:

  • That you cooked virtually all of your children’s meals
  • That you oversaw virtually all of your children’s hygiene needs such as bathing, teeth brushing, dressing in clean clothes, etc.
  • That you saw to it that your children did their school homework and appropriately helped them with it when they needed help
  • That you took an active part in your children’s school life, attending parent-teacher conferences, school plays and sports events, etc.
  • That you scheduled your children’s various doctor and dentist appointments and then provided the transportation necessary to get them to these appointments on time

The more evidence you can present as to your parental fitness and commitment, the better your chances of receiving primary custody of your children.