This article is intended to provide a broad overview of the general rules governing child custody decisions in a Texas divorce.
I will note that the law doesn’t use the term “custody” in a Texas divorce. Instead, the law uses terms such as “conservatorship,” “possession,” and “access.”
Let’s begin by looking at the different types of conservatorship.
Types of Conservatorship in Texas
“Joint Managing Conservatorship” is the sharing of parental duties between two parties, usually the parents. When parents are appointed joint managing conservators, one parent will have the right to designate the child’s primary residence. This parent is often referred to as the primary.
“Sole Managing Conservatorship” means the parent with whom the child lives and the parent who makes most of the parenting decisions regarding the child.
A “possessory conservator” is the parent who does not have primary custody of the child but does have rights of visitation.
For more information on the various language used in a child custody issues, you can read my article on Key Child Custody Terms in Texas.
Public Policy on Child Custody
The legislature set forth specific public policies of the State of Texas when it comes to making child custody decisions. These policies provide guidance to courts when a judge makes a decision on child custody as part of a divorce proceeding.
First, it is the policy of the state to assure that children will have frequent and continuing contact with a parent who has shown the ability to act in the best interest of the child.
Second, it is the policy of the state to provide a safe, stable, and nonviolent environment for the child.
Third, it is the policy of the state to encourage parents to share in the rights and responsibilities of raising their children after parents have divorced.
Fourth, the best interest of the child is always the primary consideration in determining custody issues and I will discuss that standard further below.
Presumptions on Child Custody
In addition to the State’s public policies, there are several important legal presumptions that govern child custody issues in a divorce proceeding.
Presumptions are a type of default rule that the courts operate under in making a child custody decision. If one spouse wants a different result than the default rule would provide, then that spouse will have the burden of introducing sufficient evidence to overcome the presumption.
First, it is presumed that appointment of the parents of the child as joint managing conservators is in the best interests of the child.
Second, there is a presumption that the Standard Possession Order is in the child’s best interest and that the SPO provides a minimum schedule of possession for the parent that does not have primary custody. You can learn more about the Standard Possession Order by reading this article.
Third, one of the child’s parents must be appoint sole managing conservator (or both joint managing conservators) unless the court finds that the appointment would significantly impair the child’s physical health or emotional development. This presumption arises when a third party, such as a grandparent, intervenes seeking custody of the children.
Another presumption arises when there are multiple children. It is presumed that keeping the children together when staying with or visiting either parent is in their best interests.
Understanding the Best Interest of the Child Standard
The best interest of the child standard is at the center of every decision a court makes on child custody issues so it is important for any parent to understand what that means. Unfortunately, this is not a defined standard and courts have a large degree of discretion in determining what is in a child’s best interest.
One thing we can do is identify issues that are clearly not in the child’s best interest. For example, if a custody decision would result in impairment of the child’s physical health or emotional development then it is clearly not in the child’s best interest. A parent with a history or pattern of past or present child neglect or physical abuse may have his or her rights to possession and access limited by statute.
To help provide some parameters to the best interest of the child standard, Texas courts developed a set of factors to use in determining what is in the child’s best interest. Those factors are set forth below:
- The child’s wishes.
- The emotional and physical needs of the child both now and in the future.
- The emotional and physical danger to the child both now and in the future.
- The parental abilities of the person seeking custody.
- Any programs available to assist the person seeking custody to promote the best interest of the child.
- Any plans for the child that the person seeking custody may have.
- The stability of the proposed home for the child.
- Any prior acts or omissions of a parent that may indicate the existing parent-child relationship is not a proper relationship.
- Any excuses for those acts or omissions.
Decision-Making Regarding the Child
When a court appoints parents joint managing conservators, the court must also designate which decisions can be made by each parent independently, by agreement with the other parent, or exclusively by one parent.
Agreed Parenting Plans
Remember the State’s policy to encourage parents to share in the rights and responsibilities of raising their children after parents have divorced?
Well the law very much favors and encourages parents to create their own parenting plans that address custody issues. Any agreed parenting plan is still subject to court approval and the court will review the plan under the best interest of the child standard. But if the parents can agree on a reasonable plan regarding custody, then the court will likely approve it.
Age Matters in Custody Decisions
It is important to remember that the age of a child matters when making custody decisions. This is true in two respects: for children under the age of 3; and for children over the age of 12.
For children under the age of 3, the presumption regarding the Standard Possession Order being in their best interests does not apply. The law recognizes that younger children benefit from a stable and consistent environment.
This does not mean that the other parent cannot visit or have possession of their younger children, merely that there is no presumption regarding the Standard Possession Order.
There is a big myth I often hear from prospective clients regarding older children – namely that children over the age of 12 can choose which parent they want to live with. This is NOT true.
What changes at the age of 12 is that a parent can petition the court to have the judge interview the child in chambers and the judge must do so if requested. During that interview the judge will explore the child’s wishes regarding custody. But the judge is not bound by the child’s wishes regarding custody. The judge must still make the custody decision based on the best interest of the child.
Distinguishing Child Custody from Child Support
It is natural for parents to link the two issues of child custody and child support. However, a court cannot and will not condition possession or access to a child on a parent’s payment of child support.
This means that even if the parent without primary custody falls behind on their child support, they can still enforce their visitation rights.
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