Law Office of Michael G. Diaz, P.C.
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Providing Personalized Counsel for a Positive Future
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As with a Texas divorce, sometimes people have questions as to where a child custody or suit affecting parent child relationship case should be filed. The Texas Family Code chapter 103 sets the rules for the proper place to file a child custody case.
Texas Family Code section 103.001 states that cases should be filed in the county where the child resides unless another court already has jurisdiction over the child or the child is part of a divorce case in another county.
A child is said to reside in the county where both the parents reside or in the county where the only living parent resides. A residence is meant to include where the family intended to have a permanent residence. Briefly leaving a county for a couple of weeks with no intent to stay away should not change the child’s residence.
If a custody order is already in place and one party is sole managing conservator then the child resides where the sole managing conservator lives. If a joint managing conservator parent has the exclusive right to designate the child’s residence then the child resides in whatever county that parent lives.
Now if there was a prior court order but the sole managing conservator or the primary joint managing conservator has moved to another county then the case can be transferred to that county.
The main idea is that if a custody case is necessary it should be determined where the primary connections to the child are, i.e. family, doctors, teachers, etc.
Sometimes people call my office asking about an annulment. They have been married only for a couple of weeks and have realized they made a mistake and wonder if an annulment would be possible.
An annulment in Texas is limited only to those circumstances where there was a legal barrier to a valid marriage. Some examples of when an annulment might apply are where one spouse was underage, there was fraud, duress, of force, a party was under the influence of drugs or alcohol, or mentally incapacitated. All of these reasons include the requirement that the party could not rationally make the legal decision to marry.
Texas annulments also require that once a basis for annulment is discovered that the parties did not voluntary cohabitate. So an annulment may not be available to a person who entered into the marriage under the influence of drugs but once sober continued to live with the other person as a spouse.
If an annulment is granted, then the marriage is considered to never have happened. But if the annulment is not granted then the marriage is considered valid and will continue in effect until a divorce is granted. Annulments used to be more common but today they tend to be rare. It is generally easier to get a divorce then to obtain an annulment.
In any matter involving questions related to access and possession of children, the court can order that a child custody evaluation be conducted. This can be done in a divorce involving children or any child custody case where the parties cannot reach an agreement on the possession schedule or access to the children.
Previously called a “social study,” the child custody evaluation attempts to gather information, opinions, recommendations, and answer any specific question the court may have as to rights to the child, or possession and access to the child.
The evaluation is done a person who is either has a master’s degree in a human services field of study and is licensed to practice as a social worker, professional counselor, family therapist, or psychologist. Some counties such as Dallas County have a domestic relations office with individuals who can conduct the evaluation.
The evaluator should include the following items in a child custody evaluation:
1. Personal interviews with the parties,
2. Appropriate interviews with the child(ren),
3. School records,
4. Physical and mental health records,
5. Criminal history information,
6. Evaluation of the home environment of each party,
7. Observations of the child with each party, and
8. Any other relevant information.
Once all of the information is gathered and reviewed, the evaluator will prepare a report which will include any conclusions and recommendations by the evaluator. The Court can then consider the evaluation when deciding the issues related to the children.
Child custody evaluations can be a very helpful source of information for the court. The evaluation can provide information to the court that otherwise might not come across in the formal courtroom setting. The evaluator’s ability to observe the children interact with the parents or personally visits a parent’s home is something the judge would not be able to do in most situations.
If your case involves a child custody evaluation you should discuss with your attorney the process and what to expect. You should be prepared to provide any necessary documentation for the evaluator such as school or medical records.
Michael Diaz is a Divorce and Family Law attorney in McKinney, Texas.
Providing effective and efficient solutions to Divorce, Custody, and Family Law clients in McKinney, Frisco, Allen, Plano, Melissa, Princeton, Prosper, Fairview, Celina and throughout Collin County.
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