Under what circumstances can a mother lose custody?

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Under what circumstances can a mother lose custody?

I have a 2 year old daughter and I’m going to school full-time and the father wants to take her away. He doesn’t pay his child support or see her that much. I’m living with my parents and he doesn’t like we have dogs. He says they make our daughter sick can he take her and get full custody.

Asked on June 26, 2011 under Family Law, Texas


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Child support, custody, and visitation are all separate issues.

There are two types of custody; physical and legal.   Custody can be sole or joint.  Sole means one parent has custody.  Joint means both parents have custody. 

You have sole physical custody since your daughter lives with you.  The court considers the best interests of the child.  The court will NOT take your daughter and give physical custody to the father because your daughter is accustomed to living with you and it is in her best interest that she continue living with you.

Legal custody means making decisions about your daughter's healthcare, education, etc.  It is possible that you and the father could have joint legal custody.

Since the father is not paying child support, you could go to court to seek enforcement of the child support order.  The father could be subject to civil and/or criminal penalties for failure to pay child support. 

To enforce the child support, you would file with the court an Order to Show Cause (OSC) court form with a declaration signed under penalty of perjury setting forth the facts.  When you file the OSC, the court will set a date for a hearing on the child support issue.  You will need to file your documents with an attached proof of service.  The proof of service verifies the date of mailing your documents to the father.  You can obtain a court form proof of service or you can write your own.  If you write your own proof of service, it would say that you are over 18 and the attached documents were mailed via first class mail unless specified otherwise to _________ (name and address of the father) on __________ (date).  You sign and date the proof of service at the bottom under penalty of perjury.  The date you sign should be the same date you mail the documents and the same date you file the documents with the court.

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