Child Custody Basics in Texas

I often have potential clients come into my office seeking “custody.” However, the term custody can mean different things to different people. In my experience, custody in Texas is one of the most contentious areas of family law. In this blog post, I will explain how child custody is determined in Texas, offering clarity on what the process truly entails.

Child Custody Factors to Consider

When parents cannot agree, their case will go to court for a custody determination. Every custody battle will be examined by a Judge on a case-by-case basis. The judge will then make a ruling based on your family’s unique circumstances and Texas Law.

In Texas, when parents can no longer co-parent and seek court intervention, there are four areas that must be addressed in child custody cases handled by a court:

1. Conservatorship
2. Rights and Duties
3. Parenting time / Visitation (Possession and Access)
4. Child Support

Whenever children are involved in a Texas court case, “Best Interest of the Child” is standard that judicial decisions must be made, including the above four issues.

Texas Family Code Section 153.002 makes it clear that “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”

The Best Interest of the Child

One of the most cited cases regarding best interest is the Texas Supreme Court’s 1976 decision Holley v. Adams. The Court wrote that certain factors to consider in ascertaining the best interest of a child include the following:

1. the desires of the child
2. the emotional and physical needs of the child now and in the future
3. the emotional and physical danger to the child now and in the future
4. the parenting abilities of the individuals seeking custody
5. the programs available to assist those individuals in promoting the best interest of the child
6. the plans for the child by these individuals or by the agency seeking custody
7. the stability of the home or proposed placement
8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one
9. any excuse for the acts or omissions of the parent

These are not the only factors a court can consider when making a “best interest” determination. Nevertheless, Holley Factors provide a framework for analyzing “best interest.”

Desires of the child

One of the holly factors includes the desires of the child. Texas Family Code 153.009 provides on the motion of either party a Judge must interview a child who is age 12 or older in the Judge’s chambers to determine the child’s wishes.

It is a common misconception that a child age 12 or older gets to decide which parent they get to live with. If the child tells the Judge that they want to live with a specific parent, the court can consider that in its decision, but it is not necessarily the deciding factor.

Emotional and physical needs of the child now and in the future

The court may consider the development of the child and how they are likely to benefit from being placed with either parent as a conservator. A child’s emotional and physical needs should ideally be satisfied as near as possible to the child’s state prior to divorce.

Emotional and physical dangers to a child, now and in the future;

Danger to a child can be short-term and potentially ongoing, and the court must weigh evidence supporting concerns of either physical or emotionally dangerous conditions surrounding parents seeking conservatorship and possession and access to the child.

A criminal record, and abuse, in particular, can be a major factor in custody determinations. If one parent has a history of abusing the children, they are unlikely to be granted any sort of custody and may even be required to have their visitation with the children supervised if they are granted visitation rights at all.

Parenting abilities of the parent or individual seeking custody;

If one of the parents has consistently taken care of the child’s daily physical and emotional needs, and the other parent would not likely perform the same parenting duties to the extent to which the child is accustomed, the court will weigh those abilities accordingly. Work and travel schedules can be a factor in assessing which parent has the best parenting abilities.

How each parent interacted with the child in the past and the degree to which they were involved in the child’s life usually has a strong impact on the custody decision. If parental involvement in the child’s life was split equally before, the courts would likely want to maintain such a split. If one parent clearly handled all aspects of raising the child before, they may be more likely to grant sole custody to that parent.

Programs to help custodial parents foster the best interest of the child;

Being an active part of the community where a child lives is important to their sense of self and healthy development. If a child actively participates in local civic, church, and sports programs, a court may weigh the evidence of the child’s activities in evaluating their best interests to decide conservatorship and possession and access.

Plans for the child by the parents, individuals, or agency seeking custody;

When custody and visitation issues are contested, the parties meet with mediators, court-appointed attorneys, and parenting facilitators to try to work out a parenting plan in the child’s best interests. In this process, which could go to a hearing and trial in family court, parents identify and write their proposed plans to manage and provide for the mental, emotional, and physical needs of the child.

Parents who are unwilling to cooperate with the other parent or consistently try to undermine and badmouth the other parent in front of the children are less likely to receive custody rights. A parent who shows a willingness to cooperate with the other parent when it comes to visitation and co-parenting will have a stronger case for their custody wishes.

Stability in the home and proposed placement location;

Generally, a court will favor a decision that minimally disrupts a well-adjusted child’s daily life if the child has been thriving in the family’s pre-court home and if the parent continuing to reside there proves to be the better choice for conservatorship with sole possession and access. However, if the current situation is harmful, and one of the parents seeking custody plans to move to a significantly better living situation offering numerous benefits for the child, the court may take into account the evidence supporting these claims.

The stability of each parent’s living environment significantly influences custody decisions. A parent with a fluid or unstable living situation is less likely to receive primary custody.

Courts often lean towards achieving as much continuity for the child as possible. They recognize that change can be incredibly difficult for children to cope with, and they want to keep as many aspects of the child’s life as the same. Thus, if the child has already been living with one parent full time, or one parent is getting the family home, the court may rule in favor of granting that parent primary custody so the child can maintain continuity.

Acts or omissions by a parent indicating an improper parent-child relationship; and

Abuse and neglect of a child, in any discernible format, is certainly considered by the court, as it would help predict circumstances in the best interest of the child. The failure of a parent to meet a child’s mental, emotional, and physical needs, on a temporary or another basis, can be the basis upon which the court determines conservatorship.

Excuses for the acts or omissions of a parent seeking custody.

There may be temporary conditions a court considers when evaluating options for the placement and custody of a child. If the parent, most likely to be the better conservator, has a temporary condition or issue affecting their ability to carry out parental duties, the court may consider evidence of the temporary nature of such a condition and information relative to the likelihood of such a condition to reoccur.

Please keep in mind that, with the possible exception of the “best interests of the child” factor, none of the aforementioned factors on their own will be the sole determining reason a court rules one way or another in your custody case.

They will always look at all the evidence and make a decision based on the big picture. If you are faced with a child custody dispute, and you need legal guidance, please contact the Law Office of Bryan Fagan, PLLC today to learn how we can help.

Factors that Courts Won’t Care About

Previously, it was common in family law to prefer mothers on custody issues. On November 7, 1972, Texas voters approved the Equal Rights Amendment to the Texas Constitution.

As a result, the following issues are no longer considered when deciding custody issues:

1. Infidelity
2. Marital Status
3. Gender
4. Racial Issues
5. Religion

Conservatorship in Child Custody

In Texas, what most people think of as custody is actually called conservatorship. According to Chapter 153 of the Texas Family Code, this chapter sets forth the framework for appointing individuals as conservators and granting rights of possession and access to a child. Therefore, the law outlines the roles and responsibilities of parents and others involved in a child’s life.

There are two types of conservators:

1. managing conservator and
2. possessory conservator

Managing Conservators

Managing conservators are then further divided into sub-categories:

1. sole managing conservator and
2. joint managing conservator

Under the Texas Family Code, it is presumed that the parents should be named joint managing conservators.

Sole Managing Conservator

A sole managing conservator is a person who is granted the exclusive right to make decisions for the child. However, in order to avoid joint conservatorship, one must prove that it is not in the “best interest of the child.” This requirement ensures that the court considers the child’s well-being when making decisions about conservatorship.

This is usually seen in situations where a parent:

1. has committed domestic violence against a member of the family
2. substance abuse problems or
3. engaged in behavior that endangers the child

Joint Managing Conservator

Two people act as joint managing conservators, sharing the rights and duties of a parent. In some cases, only one of them may receive the exclusive right to make certain decisions.

Possessory Conservator

The court designates a person as a possessory conservator, granting them the right to possess a child under specified conditions. During their periods of possession, this conservator is authorized to exercise certain parental rights.

It is a common misconception regarding joint managing conservators that each parent must have equal periods of possession.

Rights and Duties of Conservators

In most family cases, a parent of a child, whether sole, joint or a possessory conservator, has the following rights and duties at all times:

1. the right to receive information from any other conservator of the children concerning the health, education, and welfare of the children;
2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children;
3. the right of access to medical, dental, psychological, and educational records of the children;
4. the right to consult with a physician, dentist, or psychologist of the children;
5. the right to consult with school officials concerning the children’s welfare and educational status, including school activities;
6. the right to attend school activities;
7. the right to be designated on the children’s records as a person to be notified in case of an emergency;
8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and
9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parent’s family.
10. the duty to inform the other conservator of the children in a timely manner of significant information concerning the health, education, and welfare of the children; and
11. the duty to inform the other conservator of the children if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter.

Parental Rights and Duties

In most family cases, a parent also has the following rights and duties:

1. the duty of care, control, protection, and reasonable discipline of the children;
2. the duty to support the children, including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
3. the right to consent for the children to medical and dental care not involving an invasive procedure; and
4. the right to direct the moral and religious training of the children.

If a parent is named sole managing conservator under Texas Family Code Section 153.074, the parent will have the following rights and duties exclusively (unless limited by the court):

1. the right to designate the primary residence of the child;
2. the right to consent to medical, dental, and surgical treatment involving invasive procedures;
3. the right to consent to psychiatric and psychological treatment;
4. 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;
5. the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
6. the right to consent to marriage and to enlistment in the armed forces of the United States;
7. the right to make decisions concerning the child’s education;
8. the right to the services and earnings of the child; and
9. 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 child’s action is required by the state, the United States, or a foreign government.

Joint Managing Conservators’ Rights

However, when parents are appointed Joint Managing Conservators, the court is mandated to allocate these rights duties either:

1. jointly,
2. exclusively, or
3. Independently

Joint Rights

A joint right is when you can exercise subject to the consent of the other parent.

The following right is almost always made joint rights:

1. consent to marriage or
2. enlistment in the armed services

Independent Rights

An independent right is when either you or the other parent can exercise the right without conferring with each other, and neither of you needs the other’s consent.

The following rights are almost always made independent:

1. The right to receive information about the children,
2. consult with physicians and teachers, and
3. direct the moral and religious training of the children.

Exclusive Rights

Exclusive rights are when you can exercise the right without conferring with the other parent, do not need the other parent’s consent, and the other parent cannot exercise this right at all.

The following rights generally are given exclusively to one parent:

1. to receive child support and
2. the right to designate the primary residence of the children.

Child Custody in Texas: Parenting Time / Visitation

Part of settling the children’s issues involves establishing a schedule for when the children will spend time with each parent. Under the Texas Family Code, it is presumed to be in the best interest of the child that this schedule be the Texas Standard Possession Schedule. However, parents can agree to do something different.

Standard Possession Order (Parents within 100 Miles of Each Other)

During the Regular School Year

Elections During the Regular School Year

Some parents make this election because they can have more time with their children. It also allows them to have less interaction with the other parent.

Spring Vacation

In even-numbered years, the non-primary parent has the right to possession of the child during spring vacation.

Summer Visitation

The non-primary parent receives the right to have the child for 30 days during summer vacation.

Holidays

Holidays alternate. For example, if the father had the children for Thanksgiving, then the mother would have the children for Christmas. In the next year, it would be reversed.

Odd Number Years

Even Number Years

Standard Possession Order (Parents over 100 Miles of Each Other)

During the Regular School Year

1. At the option of the non-primary parent, they can have regular visitation as described above or
2. Or 1 weekend a month of that parent’s choosing.
3. No Thursday visitation

Spring Vacation

The non-primary parent gets every spring vacation.

Summer visitation

The non-primary parent receives the right to have the child for 42 days during summer vacation.

Holidays

Same as above.

Child Support

Custody also includes the financial support of the child. In fact, the Texas Family Code contains a rebuttable presumption that applying the statutory child support guidelines is in the best interest of the child. Specifically, under Texas Family Code Section 154.122, child support is rebuttably presumed to align with the “best interest of the child.” Therefore, these guidelines serve as a framework to ensure that financial support is provided appropriately.

Child Support usually includes one parent paying:

1. child support and
2. providing health insurance for the child

Child support is determined in Texas based on a percentage of the paying parent’s net income up to the first $8550/month of income. The parents usually share uninsured medical expenses between them.

The exact formula for calculating guideline child support is very involved, but your estimate is as follows:

Net Resources =

1. Monthly Gross Income
2. Less Federal Income Taxes (single, one deduction)
3. Fewer Union Dues
4. Less Medicate and Social Security Taxes
5. Fewer Insurance Premiums paid for Children

Support Percentage

If the parent paying child support has no net resources, the court can impute income equal to minimum wage under Texas Family Code Section 154.068.

1. “In the absence of evidence of a party’s resources, as defined by Section 154.062(b), the court shall presume that the party has income equal to the federal minimum wage for a 40–hour week to which the support guidelines may be applied.”

How Long is Child Support Paid?

Child support is paid until the minor child turns 18 or still in high school, whichever is longer.

Step Down Provisions

If you have more than one child, the amount of child support will change over time. For example, if you have two children, the parent paying child support will most likely be paying 25% of their network resources as child support. When the first child graduates from high school, the parent would start paying 20% of their network resources as child support.

Sole Discretion of the Primary Parent

Child support can be used at the discretion of the primary parent. The parent who pays child support has no say in how that money is used.

What Happens When Child Support Payments Are Not Made?

When a parent fails to comply with a child support court order, several child support enforcement options can address this violation, including:

• Jail Time
• Fines
• Garnishment

To ensure the payment of court-ordered child support, the following measures are commonly used:

Wage Withholding: The child support office sends a notice to the parent’s employer, directing them to deduct the support amount from the parent’s wages and forward it to the child support office for distribution to the child.

Contempt Proceedings: The court can hold a parent in contempt for violating a child support order. This can result in jail time and community supervision for up to five years, as well as an order to pay attorney fees related to the enforcement.

Money Judgment: If a parent delays child support payments, the unpaid amount can be converted into a money judgment, which then begins to accrue interest.

License Suspension: A court can order the suspension of any license issued to a parent who fails to pay child support for more than 90 days.

Final Thoughts

In cases of joint managing conservatorship, the rights and duties are further defined as joint, independent, or exclusive, each with specific implications for parental involvement. This legal structure ensures that all decisions made regarding custody in Texas are in the best interests of the child, prioritizing their safety, stability, and well-being.

Ultimately, the Texas Family Code provides a comprehensive and adaptable framework to address the diverse and often complex scenarios in child custody cases, always with the child’s best interests at the forefront.

Other Articles you may be interested in:

1. Remote Learning and Child Custody
2. Who Has Jurisdiction in Child Custody Matters?
3. Child custody disputes because of your ex-spouse’s new partner
4. Are Dads at a Disadvantage when trying to win 50/50 custody in a Texas Divorce?
5. Sole Managing Conservator in a Child Custody Case in Texas?
6. Help!! My Ex-Spouse Kidnapped my Child
7. How Much Will My Texas Child Custody Case Cost?
8. When Can a Minor Child Weigh in on Custody Decisions in Texas?”
9. Child Custody Geographic Restrictions in Texas
10. Adding a Deceased Father to a Child’s Birth Certificate
11. Can a Non-Family Member Get Custody of a Child?
12. Child Protective Services Investigation- What to expect and how to handle the situation, Part 2
13. Custody of a special-needs child: Things to know
14. Obtaining a copy of your Final Order
15. Reporting child abuse and neglect in Texas
16. Resolving Child Support Disputes without going to court: A how-to guide for Texas parents

Bryan Joseph Fagan( Attorney )

Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.

Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.

His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.

Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.