Importance of Temporary Custody Agreements in Texas

What is a Temporary Custody Agreement?

Temporary Custody Agreement is a document executed between two parents that provides for the possession and access of minor child/ren while the parties are in litigation. Temporary custody agreements are sometimes known as TIAs. A temporary possession order is sometimes called a TRO and is often obtained at the initiation of the case. If the parties can agree upon a possession schedule, then a TIA usually goes into their divorce decree as a temporary agreed order. If there is a dispute, the TIA will not become final until trial or an agreed final divorce decree is signed by the Judge.
The existence of a temporary possession order, or agreed TIA, is not a guarantee that a final order will follow suit. If an order is agreed to by parties with minor children, the basis for their agreed order is often negotiated by the parties and is not based on the statutory best interest factors. For example, parties may agree that they will never expose a child to a significant other. Later at the trial , one party may resent the fact that the other party has begun to date and may move to have their agreed order changed. The Judge may be inclined to have a final order that is more in line with the statutory best interest factors, including sometimes a right of first refusal provision or a provision for significant others.
For many families, the purpose of an agreed TIA is everything is in flux or in a state of uncertainty and a temporary agreed order gives the stability necessary to allow the family to move forward with their lives. The right of first refusal provisions, however, have a way of creating bad feelings and marking what is supposed to be a handy tool for parents to work for the betterment of the minor children into a situation where parents are at the courthouse almost every week.
At the outset of a case when there are minor children involved, many cases settle in the mode of a temporary agreed order or TIA. The judge is often happy to sign it, because the family is already in such a stressful place, the judge wants to be able to give them some jumps from the system.

Legal Requirements Under Texas Law

In Texas, the family code gives district courts, statutory county courts, and multimember juvenile boards broad discretion for controlling the conduct of the parties. A temporary restraining order or "TRO" under the Texas Family Code can immediately remove a child from the possession of one parent or "person with possession of the child" and place that child with another person. For example, a TRO may be used to remove a temporary caregiver who is no longer acting in the child’s best interests.
The law does not require a court hearing before a court can sign a temporary restraining order. A TRO only requires a showing—under oath—that irreparable injury will result before a hearing can be held on a temporary injunction. The hearing must be held within 14 days after a TRO is signed, and at this hearing, the court decides whether the order should be continued, modified, or dissolved.
Under the Texas Family Code, a court has authority to grant temporary orders regarding the conservatorship and possession of a child pending final trial. Under Chapter 6 of the Texas Family Code, a judge shall determine conservatorship of a child, based on the best interest of the child. A temporary order in a divorce proceeding affecting the child shall be rendered without regard to gender.
A temporary restraining order must state the nature of the injury and details establishing irreparable injury to the child or other person’s welfare. A TRO may not alter the child’s routine schedule. It may not change the exclusive legal right to designate the primary residence of the child, unless the safety of the child is involved.
A temporary restraining order under Chapter 6 does not extend beyond the 14 days. The exclusion from the home ends at the time the temporary order is no longer in effect. At a trial, the moving party must prove by a preponderance of the evidence that the temporary orders should be granted.
Family law is complicated and best not attempted without an experienced attorney.

How to Get a Texas Temporary Custody Agreement

In a situation where there is no opportunity for an amicable agreement with the other parent, you may want to look into filing a petition for temporary custody. It’s important to note that not all Texas counties allow for this type of proceeding, so be sure to check the rules in your area. The first step to obtaining a temporary custody agreement is to schedule an initial consultation with a compassionate family law attorney. A law firm that specializes in family law will be able to guide you through the process and give you advice based on your situation. At the consultation, the attorney will ask you questions about your situation and your children, including their ages, the amount of time you currently spend with your children, your living situation, the other parent’s relationship with the children, and any ways in which you think the other parent could be a danger to them. The attorney will want to know whether the children are in school, their grades, if they have any behavioral or health issues, and any other relevant information. They will also want to understand your work and home schedule and how it would work with caring for the children. Additionally, it is important to never take children to an initial consultation. The attorney will not want to listen to what the children have to say. By only having the parent present at the initial consultation, the attorney will be free to discuss the situation without being concerned about the child being frightened by hearing about the conflict between parents. After gathering the necessary information, the attorney will be able to advise whether a petition for temporary custody is appropriate for you. If you decide to proceed, the law firm will prepare the petition for temporary custody, file it with the court, and set a hearing date. The petition must be served on the other parent before the date of the hearing, and you will be required to appear at the hearing to testify. Your attorney will advise you to gather several different types of documents, including medical records, school records, and other types of documents that support your case. Preparing for the final hearing will include practice testimony and role playing for all possible scenarios. If you have a more complicated divorce or custody situation, such as serious allegations of abuse or if the other parent doesn’t agree to give you temporary custody, your attorney will also need to investigate and gather evidence that clearly demonstrates why an immediate court order is in the best interests of the children.

Factors Texas Courts Consider when Approving a Temporary Custody Order

When determining whether to approve and sign an agreed order for exclusive possession of the children, courts will look at the facts of the case, as well as the best interests of the children. If parents are able to agree upon a temporary possession schedule for their children, that schedule is the one that is submitted to court for approval by the judge. It is up to that judge to make the decision on whether the agreed temporary possession schedule is in the best interests of the children. While judges in different Cities may have different views on whether there should be standard possession orders or not, in the end, it is always at that particular judge’s discretion to decide whether the agreed temporary possession order is in the best interests of the children.
In the event that the parties are unable to agree on a temporary possession order, the judge will look at the facts of the case and how the placement of the children will affect the following:

Whether someone is a suitable person to have the care, control, and possession of the children;
The contact and relationship with the children to the person;
The period possession of the children by each party;
The needs of the children;
The religion of the parties and the children;
Each party’s ability to impart to the children education, morals, and discipline;
The general physical and emotional health of the mother;
The general physical and emotional health of the father;
The stability of the home of each parent;
The home environment;
The income of each parent, and
Any other factor that the court has evidence of that relates to the children.

Judges tend to nod their head when a parent has ready access to the children, such as being around for pick up and drop off during summer, weekends, and availability at night and during holidays and special events. Current possession schedule would also allow the court to consider what periods of time are currently being spent with each parent during the divorce.

Changing or Modifying a Temporary Custody Order

In Texas, the temporal nature of a temporary agreement allows for the potential to modify the terms provided that all parties consent. The courts maintain the ability to enforce an agreement that does not meet the technical formality requirements of a temporary order. In certain circumstances, prior to the entry of a final order, a temporary order can be modified by the parties by way of a temporary modification order. The high-water mark for modification of child custody and visitation is based upon the "best interest of the child" standard, and due to the temporary nature of the agreement, a party must not only show what is in the best interest of the child, but also evolves into showing that the specific justification in support of the modification is meritorious under the statute. Typically, modification up until a final decree is not only based upon the best interest of the child, but also the statutory grounds for the modification.
The Texas Family Code provides that a court may modify an existing order if the modification is in the best interest of the child and, as to conservatorship and possession, that the circumstances have materially and substantially changed since the earlier of: (1) the date of the rendition of the current order or (2) the date of the signing of the mediated or written agreement on which the current order is based . The party seeking modification has the burden to show material and substantial change of circumstances with regard to the child’s present or future physical health or emotional development before the court can enter an order modifying a prior order. Texas Family Code §153.307.
Commonly, courts have held that the "endangerment" standard applies to the modification of a prior order of conservatorship or possession and access and the "best interest" standard applies to the modification of a prior order of child support. The statute does not expressly state the "best interest" standard applies to the modification of conservatorship or possession and access or vice versa, but courts generally have found a reader’s choice as interpretive. The endangerment standard is considered higher bar than the best interest standard and may be found to be too broad by the Texas Legislature to apply to modification of child support. Frequently, however, parties to the modification will agree that establishing the "best interest" for purposes of modification is sufficient.

Advantages and Restrictions

Temporary custody agreements can provide numerous benefits for parents who are uncertain about the future, including those that have not married the other parent. Most importantly, they can maintain stability when there is a dispute. It assures the children that they will remain with the same parent (or parents) in the immediate future. It allows the parents to make a good faith attempt to work together and share parenting time. Ideally, it should give the parties a chance to work out their arrangement within a reasonable period of time.
Texas law requires the parents to agree to the terms of the temporary agreement before a judge signs off on it. However, if the agreement does not affect the amount of time the children will spend with each parent, or the agreement does not allow any parent to determine the residency of the children, the court may sign it without hearing evidence from witnesses, other than the parties.
On the other hand, there are several limitations of a temporary agreement. Both parents are required by law to pay child support during the time frame of the agreement. Neither parent may lie to the court when entering into the agreement, whether about income or anything else. The relationship with the other parent may be strained during this time, making co-parenting difficult. If you and the other parent do not get along, it can be difficult to work out the terms of a cooperative agreement. That same strain can work against you when it comes to making a case for what you want in the final agreement, since it makes you seem less reasonable as a parent. If you and the other parent are not able to complete the terms of the temporary agreement in the specified period of time, a judge may convert it to a final agreement.

Obtaining Legal Assistance and Resources

Certain organizations provide legally aided parental legal counsel on temporary custody and possession modifications, orders, and enforceable temporary custody agreements on behalf of low to mid-level income families. Family service centers, legal aid societies, and various nonprofits focused on family and children’s services are great places to call in order to receive their services. Your local bar association can also help you find pro bono legal counsel specializing in family law . Surrounding communities often host family events, seminars, neglect and abuse support groups, as well as providing access to CPS, courts, clerks, paralegals, and experienced family law attorneys at free or reduced rates. Foster children are assisted with getting necessary supplies, practicing for driver’s license tests, tutoring, counseling, mentoring, abuse prevention, life skills, and recruiting foster parents and adoptive parents. Collaborations are made with schools, mental health counselors, private practice family law attorneys, and abuse prevention counselors. Child visitation programs, mediators, and parenting plans are also accessible through their networks.