Facing Divorce? Tips from the Trenches – Child Custody: by Litigation

By: Manjula Shaw, CFP®, CDFA®

“Tips from the Trenches” is a series of articles based on conversations with professionals who work with individuals facing or considering the prospect of divorce. Watch this space for conversations with professionals in Family and collaborative law, Forensic-Certified Public Accountants, Mediators, Marriage Counselors, Family Court Judges, and Valuation Specialists.

Manjula Shaw is a Certified Financial Planner (CFP®) and an Asst. Vice President at Tanglewood Legacy Advisors. As a Certified Divorce Financial Analyst (CDFA®), Manjula specializes in helping individuals navigate the financial complexities of late-stage divorce, including asset division, alimony, and child support.

Manjula’s conversation is with Patricia Carter, a partner at Carter Morris, a Houston-based law firm. She is a board-certified Family Lawyer with over 24 years of dedicated Family Law litigation experience. This is the final article from her conversation with Patricia.

Resolving child custody by litigation

The state of Texas typically follows a structured process to resolve disputes and determine custody arrangements. Here are the steps involved:

I. Filing Petition: One parent (the petitioner) initiates the custody case by petitioning the appropriate court. This petition outlines the parent’s request for custody. It may include other related issues, such as visitation rights and child support.

Not ready to file today? Patricia advises you to consider what you may need in six months. Start gathering information and decide on the timing that works best for you. It’s also important to review your estate plan and make sure everything is in order. To ensure you are ready for this big step, consult a CDFA® or a CFP®. For example, you may be able to keep your family home, but it’s important to consider if you can afford other expenses, such as a family vacation or a new car. If you are refinancing your home, now is not the time. Because you would incur transaction costs to do so and have to pay transaction costs again when one spouse takes on the home mortgage as part of the divorce settlement, if this is you, you would have paid twice the fees.

II. Response: The other parent (the respondent) is served with the petition. If the respondent does not have objections, they can agree to the terms outlined in the petition. Or, if they do have objections, they may submit their response with counterclaims or requests for a different custody arrangement.

III. Temporary Orders: In some cases, especially if urgent concerns regarding the child’s safety or well-being arise, the court may issue temporary orders to establish custody, visitation, and support arrangements until a final decision can be made.

IV. Discovery: Both parents exchange information relevant to the custody case, such as financial records, parenting schedules, and witness statements. This process helps each party understand the other’s position and gather evidence to support their case.

According to Patricia, the process depends on the complexity of the assets under consideration. The child custody agreement process is generally three to four months for a couple who don’t own a privately held business. The time frame could also vary based on the parents and their personalities.

V. Mediation: Before proceeding to trial, the court may require the parents to attend mediation with a neutral mediator to attempt to reach a mutually agreeable custody arrangement.

VI. Pretrial Conference: The court may schedule a pretrial conference to review the status of the case, discuss any outstanding issues, and explore the possibility of settling without the need for a trial.

VII. Trial: If the parents cannot agree on terms of custody through mediation or negotiation, the case proceeds to trial. During the trial, both parties present evidence, call witnesses, and make arguments to the judge, who ultimately decides custody based on the child’s best interests.

Patricia notes that in Texas, a family court judge can, under certain circumstances, require the appointment of a parenting facilitator in child custody cases. A parenting facilitator, also known as a parenting coordinator, is a neutral third party appointed by the court to assist parents in resolving disputes related to parenting and custody matters.

The appointment of a parenting facilitator is based on the case’s circumstances. For example, the judge may determine that the parents are experiencing ongoing conflict or communication difficulties hindering their ability to co-parent effectively. In such cases, the judge may believe that the assistance of a parenting facilitator could help the parents communicate more effectively, make decisions regarding their children, and ultimately reduce conflict.

The role of a parenting facilitator may include:

    • Facilitating communication between parents.
    • Assisting parents in developing and implementing parenting plans.
    • Helping parents resolve disagreements related to custody, visitation, and other parenting issues.
    • Educating parents about co-parenting strategies and techniques.
    • Making recommendations to the court regarding parenting issues, if necessary.


It is important to note that the court may appoint a parenting facilitator, subject to certain conditions and limitations outlined in the court order. Additionally, the parents usually pay the fees for the services of a parenting facilitator, either equally or in proportion to their respective incomes, unless otherwise ordered by the court.

Texas Family Courts allow trials by jury; if the couple decided to go their route, it would bring an entirely different aspect and dynamics to a divorce trial.

VIII. Judgment: After considering all the evidence presented at trial, the judge issues a final judgment and orders regarding custody, visitation, and other relevant issues. This judgment becomes legally binding and outlines each parent’s rights and responsibilities regarding the child’s care and upbringing.

IX. Post-Trial Matters: Either party may seek modifications to the custody arrangement in the future if circumstances change or there are concerns about compliance with the court’s orders.

Throughout the process, the court prioritizes the child’s best interests, considering factors such as the child’s relationship with each parent, preferences (if the child is old enough to express them), and any history of abuse or neglect.

Patricia remarks that most child custody cases do not end up in court. She feels the court is not where anyone needs to be. Helping clients manage expectations is an essential part of a litigator’s job. If a client has demands that may seem over the top and unreasonable, it is worth exploring the “why” behind such an expectation.