Thanks for the interesting question. I must, of course, issue a
disclaimer that what I write here cannot be construed as legal advice
in the great state of Texas. It is, in fact, just general information.
I do happen to be an attorney licensed in another state, and I do deal
with divorces and custody issues regularly, but I must say that the
peculiar differences, state-to-state, require an expert hand to guide
one through the seemingly impossible maze of legal tests and
With that said, let?s get at it.
First, you indicated that you have only been divorced since March of
this year. That represents the first issue, as the Texas Family Code
http://www.capitol.state.tx.us/statutes/fa.toc.htm ), specifically
section 156.102, appears to require that a person seeking to modify
the right to designate the primary residence of the child ? you ? and
who have been divorced for less than one year, in order to have the
court hear the case must swear an affidavit (a statement under oath)
that one of the following has occurred:
(1) that the child's present environment may endanger
the child's physical health or significantly impair the child's
(2) that the person who has the exclusive right to designate the
primary residence of the child (your husband) is the person seeking or
consenting to the modification and the modification is in the best
interest of the child; or
(3) that the person who has the exclusive right to designate the
primary residence of the child (your husband) has voluntarily
relinquished the primary care and possession of the child for at least
six months and the modification is in the best interest of the child.
If this cannot be done, the court must and shall deny the petition and refuse to
schedule a hearing for modification.
Assuming that the above cannot be done, and your question states that
your husband is not neglecting or maltreating the baby, then after the
one-year anniversary a change of custody proceeding can be instituted.
Step One: There must be a ?Material Change of Circumstances?. Now
this could be remarriage, or one of the parents wants to move out of
state or to a different part of Texas, a change in the health of one
of the parties, change in employment or other economic factor, or a
change in the parent?s lifestyle (e.g. working nights).
Step Two: The court, if it grants a hearing on change of custody,
will look hard, and solely, to the "best interests of the child."
These factors typically include:
- the child's age, gender, mental and physical health;
- the mental and physical health of the parents;
- the lifestyle and other social factors of the parents, including
whether the child is exposed to second-hand smoke and whether there is
any history of child abuse;
- the love and emotional ties between the parent and the child, as
well as the parent's ability to give the child guidance;
- the parent's ability to provide the child with food, shelter,
clothing and medical care;
- the child's established living pattern (school, home, community,
- the quality of the schools attended by the children;
- the child's preference, if the child is above a certain age, [in
Texas, a child over the age of 10 (soon to be 12) can sign a document
called an "election" and the judge MUST consider this as evidence];
- the ability and willingness of the parent to foster healthy
communication and contact between the child and the other parent.
Assuming that none of these factors clearly favors one parent over the
other, most courts tend to focus on which parent is likely to provide
the children a stable environment. With younger children, this may
mean awarding custody to the parent who has been the child's primary
caregiver. With older children, this may mean giving custody to the
parent who is best able to foster continuity in education,
neighborhood life, religious institutions and peer relationships.
For some fine information, see:
Here is some fine information ? it is written in the context of West
Virginia, but I like the explanations (and I think that you will,
With all of the above said, it had been my considerable experience
that change of custody matters are apt to become very hotly contested
and potentially very divisive to all concerned. If one thinks that
divorces are hard, they hardly hold a candle to custody proceedings.
And they are expensive. Many states have a two-step process with some
flavor of referee or magistrate hearing prior to going to court, then
a court hearing, and then the losing party will many times attempt to
appeal the matter to the higher courts. In Michigan, for example, it
is not unheard of for attorneys to require a $10,000 retainer to take
on a change of custody client.
IS THERE A BETTER ANSWER? There may well be. You may want to consider
some sort of mediation with your ex-husband. Or mutual counseling.
Perhaps the two of you might consider a shared custody arrangement,
particularly since you indicate that you have joint custody. A true
There are splits of authority on how best to accomplish this so that
it is not stressful on the child or the parents, but I have seen where
the young pre-school child is Friday-Sunday with one parent, and
Monday-Thursday with the other; another is one week on, and one week
off; school year with one and vacation and holidays with the other;
one year on and one year off has been tried with some success in
certain situations. I heard of a case in my state where the child got
the house, lived in the home full time, and the parents came and went,
one week on and one week off!!
This paper supports a truly shared situation:
If there is any way that the parents can work this out, outside of the
court system with the help of trained professionals, it will be better
for everyone ? no question. And way less expensive.
This site has a certain sharp edge but, nevertheless, some good advice:
A little bit of a man?s perspective with good links:
I am sure that you will have questions. How can I further help you
think this through? Please write any requests for clarifications and
I will get back to you as soon as I am able.
The bottom line is this, in my opinion: the legal channels are clear
? but they are deep, expensive, and difficult for a parent in your
situation. A mediated ?re-settlement?, if at all possible, and I
realize that many times you just can?t bring the parties to a table,
but if it is possible, it will yield the best results.
Best of luck to you. I hope to hear more questions in the form of
requests for clarification from you!!!