Child Custody Laws in Texas

In Texas, courts divide child custody issues into two different categories: conservatorship and possession and access.

Conservatorship is basically the rights and duties of the parents (i.e. to make decisions for the child regarding schooling, medical decisions, and psychiatric decisions, among many other things). Conservatorship can be done in different ways, including allowing one parent to make all the decisions (Sole Managing Conservatorship) or allowing both parents to jointly make the decisions (Joint Managing Conservatorship).

When determining the rights and duties of the parent(s), the court will decide what is in the “best interest” of the child, which takes into account a large number of factors.

Possession and access refers to when the parents have physical custody of the children or when they can visit with the children. Texas has two statutory possession and access schedules: standard and extended standard. These schedules dictate the time each parent spends with the child.

However, the parties can agree on different possession and access schedules based on their needs or the court can order a different possession and access schedule based on the best interest of the child. Learn more about Texas child custody & conservatorship here.

Steps should be taken in order to prepare for filing custody.

First, we recommend contacting an attorney. An attorney experienced in Texas custody laws will help guide evidence collection and document completion, and provide support throughout the legal process.

Once you have an attorney, the paperwork begins. You’ll need to complete forms and collect documents in order to argue your case.

Finally, evidence collection may begin. Evidence needs to be collected using certain restrictions, which an attorney can help outline for you.

Whether or not a parent has to pay child support depends on what the court determines to be in the best interests of the child.

In determining the best interests of the child, the court will consider evidence relating to a wide array of factors including: physical and emotional needs; physical and emotional danger; stability of home; plans for child; cooperation between parents; parenting skills; who was the child’s primary caregiver; the child’s preferences if the child is 12 or older; geographic proximity of the children; keeping siblings together; false reports of child abuse; and fitness of each parent (including abuse, physical force and family violence).

Typically the parent who is awarded the right to designate the primary residence and/or has possession and access to the child a majority of the time is the recipient of child support.

No, child support and visitation do not go hand-in-hand. While the court can take into consideration how much possession and access to the child(ren) is being exercised when determining the amount of child support to be paid to an obligee, a parent nor a court can refuse to allow visitation solely on the issue of non-payment of child support.

In the state of Texas, children cannot determine which parent they live with until they reach the age of 12, when the court can consider the child’s wishes when it comes to which parent they stay with. It is not the sole determining factor, but may affect the final decision by the court.

Yes. Texas laws state that fathers may not be recognized as the father of their children if they:

• Were not married to the mother,
• Were not living with the child for the first two years of life,
• Didn’t acknowledge their paternity, or
• Voluntarily and knowingly abandoned the pregnant mother of their children.

Fathers who meet the qualifications of the list above may be subject to termination of their parental rights.

No, grandparents do not typically have custody and visitation rights, unless they can meet the statutory requirements, including:

1.) at least one parent not having their parental rights terminated at the time relief is requested;

2.) 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; and

3.) the grandparent must be the parent of the child and that parent of the child must be either i.) declared incompetent by the court; ii.) is dead, or iii.) does not have actual or court-ordered possession to the child.

Yes, every case involving children needs a parenting plan. A parenting plan sets the rights and duties of a parent regarding the child. Some rights and duties include: right to designate primary residence; right to make decisions regarding the child’s health; rights to make decisions regarding the child’s education; duty to provide health insurance; duty to provide child support and many others.

Texas does not have separation agreements. Instead the state has temporary orders. Upon agreement of the parties or upon order of the court, the possession and access/support terms from the temporary orders can be included in the final decree of divorce.

Upon filing of a divorce or other family matter, a party may request the court enter a temporary order governing the matter. Temporary orders allow the parties to get agreed upon or court-ordered “rules” governing various aspects of the domestic arena, including child conservatorship, possession and access, child support, property division, spousal support and various other items.

Possession and access will be decided on a temporary basis in the temporary orders either by agreement or by order of the court. Possession and access will be decided on a permanent basis in either the final decree of divorce or in the order on Suit Affecting Parent-Child Relationship (SAPCR).

You can modify custody if it is in the best interests of the child and:

1.) the parents agree;

2.) if the child is 12 years old or older and tells the court he wants to change his primary caretaker;

3.) the person with the right to determine the primary residence relinquishes care and possession of the child for at least 6 months; or there has been a material and substantial change in the circumstances of either the child, the parent, the conservator or another significant party.

The most common way people modify custody is by showing that there has been a significant change in a party’s circumstances, which is a very broad category and can be proven in a variety of ways.

The parties can request a trial to have the court determine custody arrangement or the parties can participate in mediation to help the parties come to an agreement.

An ex parte order is an order that was taken without one of the parties present. These are usually only warranted upon an emergency of one of the parties.

The court will determine possession and access to the child/children based on the best interest of the child.

In determining the best interest of the child, the court will consider evidence relating to a wide array of factors including: physical and emotional needs; physical and emotional danger; stability of home; plans for child; cooperation between parents; parenting skills; who was the child’s primary caregiver; the child’s preferences if the child is 12 or older; geographic proximity of the children; keeping siblings together; false reports of child abuse; and fitness of each parent (including: abuse; physical force; family violence).

You can increase their changes at getting a larger custody agreement by proving to the court that you are an integral part of the children’s lives. This includes showing the court that you exercise regular visitation; that you take the kids to their extra-curricular activities; that you care for them on a daily basis; and that you are stable and competent to take the children for longer periods of time.

It is always helpful to keep a journal and calendar of everything that you do for and with the children leading up to the temporary orders or final determination of custody so you can show the court, mediator or opposing party that you are capable and deserving of a larger possession and access period.

Texas does not use the term “visitation.” However, as stated above Texas uses the terms “possession and access.” Possession and access refers to when the parents have physical custody of the children or when they can visit with the children. Texas has two statutory possession and access schedules: standard and extended standard.

These schedules dictate the time each parent spends with the child. However, the parties can agree on different possession and access schedules based on their needs or the court can order a different possession and access schedule based on the best interest of the child.

If the other party can prove that the children’s emotional or physical well-being is at risk of being harmed, the court can order supervised visitation.

No, courts are not supposed to favor a mother or father. The courts are supposed to consider what is in the best interests of the child.

You should know extensive and detailed information about your child. For example, you should know:

• Child’s birthdate;
• Child’s allergies;
• Child’s special needs;
• Child’s medical background;
• Child’s schedule;
• Child’s extracurricular activities and the names of all sponsors/coaches;
• Your children’s school, teachers and grade.

Basically you should know any basic information about your child that your spouse/the other parent will know.

It is always best to have an attorney to guide you through the collection of evidence. There are complicated rules governing the collection of evidence as well as the admissibility of the evidence.

In Texas, we typically don’t use Guardian ad Litems, we more typically use amicus attorneys. A Guardian ad Litem and/or amicus attorney is often used when the children are under the influence of the strength of one party or the children are experiencing a great amount of change. It allows the child to have an advocate for their rights who is not persuaded by other factors.

Because the parties sometimes become wrapped up in “side issues,” it may be most helpful to the judge to have a third party neutral or advocate for the children come in and evaluate the case. Typically Guardian ad Litems and amicus attorneys are used when there is to be a termination of the parental rights, an adoption, or if there is physical/mental abuse.

Typically your child will not need to appear in court unless one of the parties has filed a Motion to Confer with Child. This type of motion is usually filed when one of the children is 12 or older and wants to express with the court whom they would like to reside with.

Please note that it is never a good idea to bring your child to the court for any family matters.

The Parental Kidnapping Prevention Act is in effect a statute enacted by Congress to assist states in enforcing possession and access to a child. It provides some jurisdictional rules as well as enforcement standards that can assist in allowing parents to have their possession and access rights enforced.

It is always important to try and maintain a stable and safe environment for the kids and the judge will try and maintain that stable and safe environment. Typically counties will have a standing order that will prohibit the parties from taking the children out of state, or your attorney can help you get a Temporary Restraining Order that will prevent your wife from moving out of state.

If you already have orders in your case regarding possession and access to your children, you can still file a Temporary Restraining Order to keep your wife from moving the children from the state. It is possible to limit the children’s residence to the state of Texas, the current county and/or contiguous counties.

No. Both parents must consent to change the child’s last name.

Footnote 1 and 2: Jenkins, Joan Foote and Wilhite, Randall B., O’Connors Texas Family Law Handbook, 410-415 (2010).