As discussed in my blog two weeks ago, at the time of filing for divorce or a suit affecting the parent-child relationship or anytime during the pendency of a lawsuit involving children, a party can request a Temporary Orders Hearing. The purpose of the Temporary Orders Hearing is for the Court to make custody orders regarding conservatorship, rights and duties to the child, possession and access for each parent with the child, and child support that will remain in place during the pendency of the lawsuit.

What makes a person the “primary parent” as opposed to the other parent is that the primary parent is awarded to be the “person with the exclusive right to designate the primary residence of the child.” There are a number of factors the Court considers when deciding who should be given the temporary exclusive right to establish the primary residence of the child at a Temporary Orders hearing. 

Assuming both parents are fit and there has not been any child abuse, harm or neglect, the Court first and foremost is going to examine which parent has been the primary caretaker of the child. If both parents shared in this responsibility, it is ok to acknowledge this fact. However, if you believe you were the primary parent presently and leading up to the lawsuit, the following are actions (if applicable) you need to show the Court you performed for your child a majority of the time:

  • You fed your child;
  • You bathed your child;
  • You got your child ready for school;
  • You took your child to school or daycare;
  • You picked up your child from school or daycare;
  • You scheduled, attended and took the child to and from doctors’ appointments;
  • You attended school activities and parent-teacher conferences;
  • You participated in the child’s extracurricular activities; and
  • You helped with the child’s homework.

Please understand that this list is not all encompassing and there are multitudes of ways that you can prove that you are the child’s primary parent. Documents such as homework logs, attendance records, report cards, reading logs, and daycare logs are very helpful in aiding the Court when it comes to deciding which parent shall have the temporary exclusive right to establish the child’s primary residence at a Temporary Orders hearing.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.