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When Parents Must Negotiate Child Custody During a Separation

Debating child custody with a spouse can be a grueling, uncomfortable and painful process. Even if the separation was amicable, pent up feelings and resentments can easily bubble to the surface during negotiations over child custody. It can be an emotional conversation to have, and each parent may worry their children may be taken away from them. If possible, it may be best if both parents are able to set aside their differences and make decisions that benefit the children most. When this is not possible, they may then have to attend court to battle custody of their children in front of a judge with the help of a child custody attorney from the Scroggins Law Group.


What does it mean to have physical custody?

A parent who has physical custody, is able to live with their children in the same home. It is possible for one parent to be granted sole custody, or shared between each parent. When both parents have joint physical custody, this means the children must split time fairly living with each parent. Sole custody may be granted if it is shown that the other parent is not fit to take proper care of the children. In the best of circumstances, joint physical custody is awarded so both parents can have an influential role in their children’s lives.

Does having legal custody mean I make all the decisions regarding care?

Yes, the parent with legal custody has the responsibility to make important decisions for the children. Such choices could be where they go to school, what doctors they see when not feeling well, and other aspects of their upbringing. A judge may decide to award sole legal custody to one parent, if there is evidence that the other has been abusive, neglectful, has a drug problem, becomes incarcerated or suffers from a mental illness.

How often does third-party custody happen?

While rare, it is possible for custody to be awarded to neither parent. In this scenario, a third-party may come forward and request custody of the children instead. Third-party custody may also be referred to as non-parental custody or guardianship. In some cases, the people who come forward wanting custody are close relatives of the parents, who are better suited to care for the children. Before third-party custody is approved, a background check, home inspection and interview may be performed.

When may attending family court be needed?

If the parents who are negotiating terms of child custody are not able to arrive at a resolution, may have to attend family court in front of a judge. This judge may have to establish terms of the custody, with or without considering the preferences of the parents. In general, a judge takes into account the following factors when determining the ultimate verdict:

  • What is in the best interest of the children
  • The standard of living with each parent
  • The willingness of each parent to work cooperatively and respectfully together
  • The preferences of the children
  • Whether there were cases of abuse, neglect or addiction during the marriage
  • The financial stability of each parent and ability to afford basic needs

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*Mark L. Scroggins is *board-certified in family law by the Texas Board of Legal Specialization. Unless otherwise noted, other attorneys are not *board-certified.

**Super Lawyers (a Thomson Reuters service, awarded to Mark Scroggins 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021)

The information in this article (OR ON THIS WEBSITE) is for general information purposes only. The information contained herein is not guaranteed to be correct, complete, or up to date. You should not rely on any information in this article, but should consult a licensed attorney for legal advice regarding your specific case. Nothing in this article should be construed as legal advice for any individual case or situation. Viewing of this information is not intended and does not constitute an attorney-client relationship. Additional Resources

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