Child Custody Considerations Under Texas Law

Joint custody is the default, but it all depends on the circumstances

Child custody is frequently the most contentious issue in a divorce. In Texas, the law requires a court to settle custody based primarily on the “best interest of the child.” This requires consideration of all of the facts and circumstances surrounding the child and parents' situation. In many cases the parents may be able to work together and develop a proposed custody arrangement—a “parenting plan”—that satisfies the court. But the final decision always remains with the judge, who must follow the “best interest” standard, even if it conflicts with the wishes of the parents.

How Custody Works in Texas

Texas law formally refers to “conservatorship” of a child rather than custody. The person or persons who have decision-making rights with respect to the child's living arrangements, education, health care, and so forth, are referred to as the “managing conservators.” A person who only has limited access and visitation rights with the child is referred to as a “possessory conservator.”

A Texas court is not supposed to automatically favor one parent based on gender or marital status (e.g. the mother over the father or a married parent over a single one). Indeed, state law starts with the presumption that both parents should be named as “joint managing conservators.”

“The family code gives attorneys and judges a lot of guidelines and suggestions to follow,” says Marilea Lewis, a family law attorney with Orsinger, Nelson, Downing & Anderson in Dallas, “but if there are extenuating circumstances or special needs, the court can vary from the guidelines.”

That goes for support payments as well as joint managing conservatorship. “The presumption is that the standard possession order is in the best interest of the child, but that too is rebuttable. The courts in Texas have a great deal of discretion when it comes to determining the division of community estate and the best interest of the child,” she adds. Joint conservatorship may be rebutted by evidence of one parent's unfitness, such as a history of violence or sexual abuse; a judge may also decline if it would “significantly impair the child's physical health or emotional development.”

It should also be noted that even when both parents are named as managing conservators, one parent will likely be given primary physical custody—that is, the right to designate the child's primary residence. A joint conservatorship does not require a child to spend equal amounts of time with both parents. It does require that one parent not take any major action affecting the child without consulting or informing the other.

Determining the Child's “Best Interest”

“The best interest of the child is the overarching basis upon which a court makes a ruling,” Lewis says, “but there is a lot of nuance within that.” A common concern such as the child’s school may not be as simple as proximity. “You have to look at each issue. Is it an issue of physical safety, emotional development or wellbeing, or is it a preference in a parenting decision?”

Unless the parents file a written agreement, a judge will make a final decision regarding conservatorship after considering a number of factors, including:

  • Each parent's ability to give “first priority” to the child's interests;
  • The extent to which each parent participated in the child's care prior to the divorce or custody lawsuit;
  • How close the parents live to one another; and
  • If the child is at least 12 years old, his or her preferences may be taken into account.

Resolving Through Mediation

Lewis estimates that mediation is required in roughly 90 percent of cases where custody is at issue. “Most of the courts prefer that the parties do whatever they can to resolve their issues without court intervention,” she adds.

Not only is mediation often the cheaper and faster option, but “allows the parties to maintain control of the lawsuit,” Lewis says. “They know the facts and have all of the evidence. Whereas if you go into the courtroom, the judge doesn’t know the people or their children, and will not have all of the evidence.”

Custody cases are always highly fact-specific, so it is important to consult with a Texas family law attorney about your particular case. Lewis warns against self-representation in these cases.

“If you’ve been married for a short time and there isn’t any property or children, you don’t need to spend a lot on an attorney,” Lewis says of divorce, “but if you have children, that exponentially increases everything involved in the case.” This isn’t exclusive to the future wellbeing of the child, but perhaps your own.

“People underestimate the ability and reach of a family court judge,” says Lewis, herself a former judge. “A civil court judge can take your money; a criminal court judge can put you in jail; well a family court judge can take your money, put you in jail and even take your dog. Family courts in Texas can enforce nonpayment of child support by confinement in jail. So trying to do it on your own may not seem like much of an issue at the time, but could become very important.” 

If you'd like more general information about this area of the law, see our custody and visitation law overview.

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