Divorce is a tumultuous time in a person's life and often people seek out any avenue they can to feel in control of a situation.  After separation, many times in a fight, an angry spouse will threaten legal action to remove a child from the parent who has custody.  This is an unfortunate choice, which usually leads only to hurt feelings, fear on the part of either the child or the spouse, and continued instability in the household.  When faced with this threat, do not give in to fear.  Doing so will only produce the exact result the threatening spouse desires to achieve.  Rest assured that only if it is in the best interest of the child would a Texas court turn the child over to a noncustodial parent. 

Regardless of how hollow the threat may sound initially, it is vitally important to obtain an attorney if the noncustodial spouse files a suit to modify where the child resides.  A judge looks at many factors to determine with whom the child should reside.  Some of the factors are:

1. Where the child will benefit most psychologically, physically, developmentally, and emotionally;

2. Which parent makes the welfare of the child first priority and can work with the other parent;

3. Which parent will best foster a positive attitude towards the other parent;

4. Which parent spent the most time rearing the child prior to separation;

5. Where do the parents live in proximity to one another; and

6. Where does the child want to live (if 14 or older).

This is not an exclusive list.  Any other factor that is relevant to what is in the best interest of the child may be considered by the court in making such a determination. Many times noncustodial parents will threaten to tell the judge bad things about the character of the custodial parent that would tend to persuade the judge abuse or neglect of the child is taking place.  Mere accusations of abuse or neglect of a child are not enough for a judge to remove a child from his or her home.  However, if credible evidence of abuse or neglect is actually admitted, then the judge has a duty to remove the child from the home.  Credible evidence may come in the form of the noncustodial parent’s testimony, but that testimony may be countered by a custodial parent’s own testimony as well.  If a custodial parent is well prepared and gives organized, believable testimony that it is in the best interest of the child for him or her to retain custody, a judge is likely to allow the child to remain at home. 

Rarely is it in the best interest of a child to be uprooted from a stable home environment (especially if they just got settled from the parents' separation), and judges in Texas are reluctant to move children unless compelling reasons exist to do so.  But any action by a noncustodial parent to do so must be taken seriously and acted upon quickly.