Thinking Of Getting Custody Of Your Child Before The Next School Year? You Better Hurry.

Jamie L. Graham – 05/07/19

If you are thinking of filing for custody of your child or children, one of the most important issues is timing. Courts in Texas are going to look at what is in the child or children’s best interest. One of the factors that the courts look at to determine what is in a child’s best interest is stability and education. So, it follows that the courts are not likely to remove a child from their current school, whether it be private or public. Absent extenuating circumstances, it’s just not good for a child to make so many transitions in one year. So, if you are thinking about custody, you better get moving. The code requires certain notice/timing requirements.

First, it takes a minimum of three months to get a custody case to trial. And I mean, MINIMUM. Let’s review the deadlines. Once you file, you have to wait at least twenty days for them to answer unless: a) they answer early; b) you have made a request for Temporary Orders in your filing or c) they have signed a Waiver of Citation. Temporary Orders in a child custody case in Texas have a whole set of requirements, but suffice to say, the standard to obtain custody on Temporary Orders in Texas is stringent and I will revisit this issue on another blog.

Second, once the answer or Waiver is on file, this is the time that you will be able to send notice to the other party or their attorney to set the case for trial. You must give the other side 45 days’ notice of the setting. So, between the 20 days to answer (above) and the 45 days’ notice, it’s been 65 days. Hmmm…so why did I say three months? It is a game that many litigant’s play. The person that has custody and wants to retain it will almost always delay because they know that the courts put an emphasis on stability and education. What do they do? They will send out discovery (a lengthy set of requests for answers to questions and requests for supporting documentation). This adds another 40 days to the setting because it is a litigant’s right to seek information in support of their case. And, of course, this is a MINIMUM. If the answers are not specific enough or the documentation provided is not enough, the party can also file a Motion to Compel in an effort to obtain same. Yep –you guessed it –more delay.

Third, almost all courts in Texas require litigants to participate in the mediation process. In order to do this, all of the litigants, lawyers and mediator have to come together on a date and time for the case to be mediated. This is another way that your case timetable can be extended.

Fourth, Texas litigants have a right to a trial by jury. We are one of the only states that allow a jury trial in a custody case. So, if one of the parties wants to delay the case so that it goes into the next school year? You guessed it –they request a jury trial. Depending on the county that you reside in, this could delay the case for up to 6 months or more. Fortunately, jury trials are far and few between, but is a valid and used tactic to delay the case.

With the above in mind, if you are considering custody for the next school year, now is the time to file.