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State Bar of Texas

What Parents Need to Know about Child Custody Laws in Texas

Jerry W. Tidwell, Jr.
Child custody laws in Texas

When couples divorce, or when unmarried people have children together, they will need to decide who has custody of the children.

Child custody can be simple or complicated, depending on whether the parents can reach an agreement between themselves. At Tidwell Law Firm, we have represented numerous parents seeking custody of their children, and we are available to discuss your options.

In Texas, custody is called “conservatorship,” and a judge will decide conservatorship unless the parents can agree.

Conservatorship is most often decided when parents divorce each other, but can also happen when one parent files a paternity suit or a parent-child relationship suit. Below, we point out some of the highlights of child custody laws in Texas.

Rights Involved in Conservatorship

If you are granted conservatorship, you will have many rights with respect to your children. For example, you will be able to:

  • Approve medical treatment for the child
  • Discuss your child’s performance with school officials
  • Gain access to medical and educational records
  • Discuss your child’s health with doctors and dentists
  • Obtain information from the other parent about your child’s welfare

As you can see, you have these rights regardless of whether your child is living with you. In Texas, physical custody is called “possession and access” and it is different than conservatorship.

Two Versions of Conservatorship in Texas

Texas recognizes the following types of possessory conservatorship:

  • Joint managing conservatorship
  • Sole managing conservatorship

They are quite different and have an enormous impact on when you might see your child. You should understand the ins and outs of each before you bring a suit for child custody in court.

Joint Managing Conservatorship

Joint managing conservatorship means that both parents share the rights and responsibilities mentioned above.
Under child custody laws in Texas, there is a presumption that both parents should be appointed joint managing conservators unless circumstances warrant something different.

When the judge awards joint managing conservatorship, they will specify which responsibilities each parent has separately and which ones they share. For example, only one parent might be given the right to make emergency medical decisions even if both parents share all other rights.

Even in a joint managing conservatorship in which rights and duties are shared, the right to designate the primary residence of the child and the right to receive and disburse support of the child may be exclusively awarded to one conservator.

With joint managing conservatorship, the judge will need to decide who has actual possession of the child and when. Typically, the judge will decide this with a standard possession order, which is set out in Texas’ custody laws.

Sole Managing Conservatorship

As you might imagine, being awarded sole managing conservatorship means that only that parent gets to make important decisions for the child, such as:

  • Approving medical and psychiatric decisions
  • Attending school activities
  • Receiving child support
  • Making educational decisions for the child
  • Deciding the child’s primary residence

As sole managing conservator, you can make these decisions without any input from the other parent. Sole managing conservatorship is not the norm, however, so parents should adjust their expectations accordingly.

When Do Courts Grant Sole Managing Conservatorship?

Because there is a presumption that conservatorship should be joint, a judge won’t award sole rights to one parent unless circumstances warrant it. Some of these situations include:

  • The other parent has not been involved in the child’s life
  • The other parent has a criminal history
  • The other parent has a history of drug or alcohol use
  • The other parent has a history of domestic violence or neglect
  • Both parents have extreme conflicts regarding education or religion which are not easily resolved

For example, if the other parent has been convicted of domestic violence or of neglecting your child, then you should have a much easier time asking for sole managing conservatorship. The same is true if they have a self-admitted drug addiction. However, if the parents just disagree a lot, then it is much harder to get sole managing conservatorship.

If you are interested in being named the sole conservator, you should meet with an attorney as soon as possible.

It takes quite a bit of evidence to make a compelling case, and you need to begin working right away to find the evidence that might sway a judge. Instead of gathering this evidence by yourself, work with an attorney.

The Best Interests of the Child

Decisions about conservatorship and possession and access are made with the child’s best interests in mind. There is no one factor that a judge will look at. Instead, judges take a holistic view of the entire situation to reach a sound decision about what arrangements will benefit your child the most. For example, a judge will probably look at:

  • Your child’s physical needs
  • Your child’s emotional needs
  • The parenting abilities of each parent
  • Your child’s desires
  • The stability of the proposed home
  • Any act or omission on the part of a parent that suggests the relationship is not proper, such as failing to see the child for a lengthy period of time
  • Any excuse for the act or omission that can provide context
  • The physical danger the child is in, now or in the future
  • The programs available to the parent that will assist the child

These are only some of the factors a court might consider. A judge can look at anything relevant, and he has wide discretion to reach a result based on the evidence. Some parents are unhappy with a judge’s decision, but it is not “wrong” unless the judge completely failed to perform any analysis or got key facts wrong.

Visitation Schedules

Visitation is called possession and access in Texas.

If you cannot reach an agreement with the other parent, a judge will need to make a decision based on the child’s best interests and will draft a possession order. There is a presumption favoring a standard possession order. A standard possession order is created by Texas custody laws and is the baseline a judge uses.

For example, a standard possession order might be the following for a child over age 3:

  • Primary parent has the child for most of the week, Monday through Friday, since the child is attending school.
  • Non-primary parent will take possession and have access to the child starting at 6:00 pm on the first, third, and fifth Friday of the month. This visitation ends on 6:00 pm on the following Sunday.
  • Non-primary parent has Thursday night visitation from 6:00 pm to 8:00 pm.
  • Parents will split up holidays. For example, one year one parent will get Christmas while the other parent gets Thanksgiving. The next year, the parents swap.
  • During the summer, the non-primary parent often gets up to 30 days of time each summer with the children, if they request it.

This standard possession order will not apply in all cases. For example, if the parents live more than 100 miles away, then it is not really feasible for the child to spend two or three weekends a month with the non-primary parent. Instead, the non-primary parent might get one weekend a month of their choice (not limited to only the first, third, or fifth).

Standard possession orders may not work for parents, so the law allows them to come up with an agreement that is better suited for all parties involved. They will need to make sure that they can explain to the judge how the order they agree to works in the best interests of their child. If it does, then the judge will sign off on it.

Possession Enforcement Actions

Just because a judge has come up with a possession schedule does not mean that parents always follow it. Most possession orders allow parents to mutually agree to changes in the possession order.

On the other end of a mutually agreeable relationship, when a divorce is contested and emotions run high, it is very normal for one parent to try to frustrate the other parent’s ability to see their child. Denied custody leaves bitter feelings for everyone but is nevertheless a persistent problem we see post-divorce.

Parents can come up with all kinds of excuses for why a child cannot come visit on the appointed date, such as:

  • Child is sick
  • Child is too busy with activities
  • The other parent’s car broke down and he or she cannot get to the drop off location
  • The child does not want to see you

Example Scenario

Imagine the following scenario. You have visitation starting on Friday evening and go to the location where you are scheduled to pick up your child. Unfortunately, the other parent never arrives. What do you do? You shouldn’t drive to the other parent’s house and demand access but should instead meet with an attorney and ask the court to enforce the possession order.

To help your case, you need to perform all of your own obligations under the order. For example, if the order states you pick up your child at 6:00 pm at the McDonald’s parking lot, you need to be at the McDonald’s parking lot at 6:00 pm—even if you know ahead of time that the other parent has cancelled visitation. Showing up is how you prove you are ready and willing to take possession of your child.

You also need evidence to confirm that you showed up. A judge might not trust just your word, so take a friend with you who can testify to that effect or get a cup of coffee nearby and save the receipt. This evidence will convince a judge that you satisfied your obligations under the court order.

To compel compliance, a judge can order additional visits or even change the possession order. Judges can also punish parents more directly by finding them in contempt of court and fining them.

Modifications of Court Orders

Having made orders for conservatorship and possession and access, a judge is usually not eager to revise them.

Nevertheless, life rarely stands still and circumstances change. Texas child custody laws allow judges to issue modifications for conservatorship, child support, or possession of and access to a child.

To request a modification, a parent will need to show that circumstances have “materially and substantially” changed. For example, one parent might have moved much farther away or taken on a new job with a different work schedule. In these situations, the old visitation schedule probably is not working for anybody and must be modified.

There are other situations where you can seek a modification:

  • Your child is at least 12 years old and wants to decide who to live with
  • The primary conservator has abandoned the child for at least six months, unless they left the child with someone else because of military deployment

Modification is complicated, and Texas judges are rarely eager to reconsider their original order unless several years have passed. To make a compelling case for modification, you should work closely with an experienced child custody attorney.

Establishing Paternity

In Texas, a woman’s husband is presumed to be the father of any child born while they are married. However, paternity suits crop up in a couple of situations.

For example, a single mother might want to find the father of her child so that she can get child support from him. In other situations, a man wants to establish his paternity so that he can have access to his child. A paternity suit can be filed at any time in Texas by either parent or, in some cases, the child.

Once the suit starts, the parties involved can agree that the man is the father. But if there is no agreement, then the court can order a blood test, with each side splitting the cost. If the test shows that the man is the father, then a judge will need to decide custody, possession, and child support issues.

Speak with an Experienced Child Custody Attorney

Disputes involving custody in Texas are some of the most emotional that we deal with here at Tidwell Law Firm. During our decades of experience, we have seen parents struggle powerfully to maintain relationships with their children, and we want to help.

Our experienced Texas child custody attorneys have years of experience in this area and are happy to meet with you for a free consultation.

Contact us today.

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