As a matter of public policy, Texas courts want to ensure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child. Those parents must be able to provide a safe, stable, and nonviolent environment for the child and express a willingness to share in the rights and duties of raising their child after a dissolved marriage.
Here’s what you should know if you’re facing a child custody issue in Texas.
- What are the Different Types of Custody in Texas?
- How is Custody Determined in Texas?
- What is “The Best Interests of the Child” Standard?
- Do Grandparents Have Custody and Visitation Rights?
- What is a Parenting Plan?
- Modifying a Child Conservatorship Order
- Texas Child Custody FAQs
What are the Different Types of Custody in Texas?
When parents separate, the preferred standard under Texas law is that both parents should share their parental rights and responsibilities unless there is a compelling reason not to do so.
Texas uses child custody terms that are different from what most people are familiar with in other states.
In Texas, when parents are separated or getting divorced, custody is called conservatorship. Instead of using legal custody and physical custody, Texas uses “managing conservatorship” and “possessory conservatorship.” Although the terms are unique to Texas, the concepts are similar to those you encounter in other states.
The parent chosen to decide the child’s primary residence and when a parent has access to the child is often referred to as the possessory or primary conservator. In other states, this is known as visitation rights.
If parents can’t agree on a schedule, Texas law provides a standard possession order that lays out the exact times each parent will spend with the child. The order varies depending on how far apart the parents live. Also, it doesn’t necessarily apply to children under three.
Managing conservators are further defined as sole managing conservators or joint managing conservators. Under the Texas Family Code, it is presumed that the parents should be named joint managing conservators. However, if one of the parent’s decision-making abilities has been compromised due to untreated alcohol or drug abuse, or where there’s a history of domestic violence or child abuse, sole managing conservatorship may be granted.
Managing conservatorship refers to a parent’s role in making critical decisions about the child’s life, such as the child’s medical needs and educational, cultural, and religious upbringing.
Sole managing conservators make these significant decisions on their own, while joint managing conservators make these decisions with input from both parents.
When a parent is named sole managing conservator, according to state law, they will have the following parental rights and duties exclusively unless otherwise limited by the court:
- the right to designate the primary residence of the child
- the right to consent to medical, dental, and surgical treatment involving invasive procedures
- the right to consent to psychiatric and psychological treatment
- the right to receive and give a receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child
- the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child
- the right to consent to marriage and enlistment in the armed forces of the United States
- the right to make decisions concerning the child’s education
- the right to the services and earnings of the child
- except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as agent of the child in relation to the child’s estate if the state requires the child’s action, the United States, or a foreign government.
With joint managing conservators, each parent has an agreed-upon list of rights and duties they share regarding the child.
How is Custody Determined in Texas?
Chapter 153 of the Texas Family Code details the framework for appointing conservators and granting rights of possession and access to a child.
Under Texas law, mothers and fathers typically have parental rights to have “physical possession” of their child. Every parent normally has the right to participate in their child’s legal, educational, moral, religious, relationship, and residential decisions.
Before determining custody, Texas courts often require all divorcing parents with minor children to complete a mandatory parenting class online or in person. It is designed to help parents and children deal with the trauma of divorce and separation.
Parents are also encouraged to make decisions about child custody independently if possible. Often this is done with the help of a mediator. An impartial third party can bring clarity and reason to what can become an emotionally-charged discussion.
A professional mediator will attempt to help parents establish common ground, exploring issues such as:
- Identifying problem areas
- Clarifying priorities
- Reducing the number and severity of misunderstandings
- Agreeing on dispute resolution methods
- Develop strategies to help collaborative parenting
- Understand and implement the possession and access provisions of parenting plans
If parents can draft a custody plan that both agree on, they will present it to a judge for approval. If they can’t reach a consensus, the court will hear evidence and witness testimony and render a custody order decision instead. This is a court order and is binding.
What is an Amicus Attorney?
Many other states use guardian ad litems which are attorneys retained to specifically protect the rights and interests of children in a divorce and custody process.
Texas does not use guardian ad litems. Instead, the state uses amicus attorneys. They perform many of the same protective and investigative functions. The official reference is just different in the state.
An amicus attorney is often used when children are heavily under one parent’s influence or stressed due to significant changes in their lives. An amicus attorney lets the child have an impartial advocate for their rights who is not persuaded by other factors.
In some child custody case disputes, the court may appoint an amicus attorney to help decide what is in the child’s best interests. This is more likely to occur in highly contested family law cases.
Actions that amicus attorneys may take include:
- Talking to the children and the parents
- Home visits
- Interviews with third parties, such as doctors or friends
- Attending court hearings or mediation
- Possibly sending out discovery.
What is “The Best Interests of the Child” Standard?
Texas law specifically states that the child’s best interest must be the court’s primary consideration when determining child custody issues.
To assist judges in reaching the best possible decision in custody cases, the state developed a list of factors the court considers regarding a child’s wellbeing. These include:
- The child’s desires
- The child’s immediate and future physical and emotional needs
- If there is an immediate and future physical and emotional danger to the child
- The parental abilities of each parent
- Programs available to assist parents who want to promote the best interest of their child
- Plans each parent has for the child
- The stability of the home or proposed home
- Any actions or failures to act that may indicate that the parents don’t have a proper parent-child relationship
- Any excuse the parents may have for those actions and failures to act
Do Grandparents Have Custody and Visitation Rights?
In most cases, the answer is “no” unless they can meet the statutory requirements, including:
- At least one parent not having their parental rights terminated at the time relief is requested
- Overcoming the presumption that a fit parent acts in the best interest of their child in denying possession or it would significantly impair the child’s physical health or emotional well being
- The grandparent must be the parent of the child, and that parent of the child must be:
- Declared incompetent by the court
- Dead, or
- Does not have actual or court-ordered possession of the child
What is a Parenting Plan?
All cases involving children in Texas must include a parenting plan. This is a detailed set of rights and duties each parent must perform regarding the care of a child. It spells out things such as:
- Visitation schedule
- Healthcare, education, and religious upbringing
- How information is shared and accessed
- How will relocation of one parent or the other be handled
- Telephone, text, and online access
- Transportation to and from events and during exchanges
- Holiday, birthday, and vacation planning
- Weekends, including holidays, and school in-service days preceding or following weekends
- Custody dispute resolution processes
Standard Possession Orders sets forth the non-custodial parent’s visitation rights. It typically gives a visiting parent the right to exercise visitation on alternating weekends, usually the first, third, and fifth weekends of each month.
When parents live more than 100 miles apart, in most cases, the non-custodial parent is only entitled to one weekend per month and has additional visitation at another time.
Both parents have the right to spend holidays with their child and may divide the day in half or alternate years.
Under Texas law, a non-custodial parent is entitled to a visitation of at least 30 days during the summer. If the parents live more than 100 miles apart and the non-custodial parent only has one weekend visitation per month, the summer visitation period increases to 42 days.
Modifying a Child Conservatorship Order
To request a change to a conservatorship or possession and access order, you must file a “Petition to Modify the Parent-Child Relationship” with the court.
A Texas court will grant a request for modification in limited circumstances. A judge will only permit an improvement if the change is in the best interests of the child and the request is based on one or more of the following:
- The circumstances of the child, a conservator (usually one or both parents), or other person affected by the order have materially and substantially changed since the earlier the date of the current order or the date of signing of a settlement agreement which the current order is based. This is a broad category and can be proven in various ways.
- The child is at least 12 years of age and has expressed a preference to the court as to the person who should have the exclusive right to designate the child’s primary residence (basically referring to the person the child lives with primarily)
- The conservator who currently has the exclusive right to designate the child’s primary residence has voluntarily relinquished the primary care and possession of the child to another person for at least six months. This doesn’t apply if the conservator relinquished primary care and possession due to military service.
If a court made an initial child custody determination, that court has exclusive continuing jurisdiction under Texas Family Code Section 152.202.
Filing to terminate someone else’s parental rights is a drastic measure, but it is possible if one parent can prove the other parent:
- Abandoned your child
- Endangered your child
- Neglected your child
- Caused serious injury or death to a child
- Committed certain criminal offenses
- Engaged in certain forms of substance abuse
- Had their parental rights to another child terminated because of endangerment.
You will need to present clear and convincing evidence, which can be a high standard to meet. In most cases, it’s best to retain an experienced family law attorney to assist you.
Texas Child Custody FAQs
What if there is a history of violence?
In Texas, there is a presumption under the law that parents should be named joint managing conservators. However, when determining if parents should be appointed Joint or Sole conservators, the “best interests of the child” standard considers many factors, including whether:
- The child’s desires
- The emotional and physical needs of the child, now and in the future
- Danger to the child, now and in the future
- The parental abilities of both parents
- Stability of the home environment
- The plans each parent has for the child.
- Whether there is evidence of family violence
- Whether either parent has filed a false report of child abuse
If there has been proven domestic violence, it’s easier for a parent or an attorney to argue against a joint managing conservator presumption. The Texas Family Code prohibits the appointment of parents as joint managing conservators if credible evidence of domestic violence is presented.
If both parents share custody, does anyone pay child support?
It’s possible to receive child support when parents have joint conservatorship in Texas in most situations. Spousal support, child support, and conservatorship issues are treated as separate matters, and different standards and purposes are used to determine each.
Can a parent refuse to allow visitation by the other parent?
No, and if you’re smart, you won’t even consider refusing visitation if it’s part of a child custody court order. Unless there’s a compelling reason, such as placing a child in some sort of danger or neglect, if you deny visitation, you could be held in contempt and subject to legal action up to and including fines and perhaps jail time.
Does Texas favor mothers over fathers in custody cases?
No, gender has no bearing on the outcome of conservatorship cases. The court is only concerned that the child’s best interest is being met, regardless of whether a mother or a father is most suited to do that.
Can a custodial parent move to another part of Texas or out of state with a child?
When parents of a child get divorced in Texas and continue to live in Texas, Texas has jurisdiction over the parties.
Judges try and maintain a stable and safe environment for children. This means that counties typically have a standing order to prohibit the parties from taking the children out of state. In some cases, your attorney may help you get a Temporary Restraining Order to prevent your spouse and children from moving out of state.
It is possible to limit the children’s residence to the state of Texas, the current county, or contiguous counties to ensure a parent has close and continuing contact with their children.
Does a child have a say in conservatorship matters?
Indirectly yes, but a judge is under no obligation to honor a child’s wishes. In Texas, when a child reaches 12 years old, a parent can request that a judge interview them. It is wrong to assume a child has the right to decide where they will live once they turn 12 years old.