Family Law

How do Judges Decide Child Custody in Texas

By Melissa Heinig, Attorney
Many divorcing parents are able to create their own parenting plans, but when they can't agree on custody issues, a judge will have to decide for them. Learn about the factors judges consider when deciding custody and parenting time.

Divorce is complicated and full of emotion. Divorcing parents need to consider what custody arrangements will work best for their family. If parents can’t agree, a court will have to decide for them.

What Is Custody?

In Texas, family law courts divide custody into two parts: conservatorship and possession and access.

Conservatorship

Conservatorship (legal custody) refers to a parent’s right to make decisions regarding the child’s school, medical care, religion, and general welfare.

The court may award:

  • sole managing conservatorship (one parent)
  • joint managing conservatorship (both parents), or
  • possessory conservatorship.

A sole conservator has the exclusive right to make decisions about the child, and a judge may grant sole conservatorship to one parent in families with a history of:

If there are no concerns with abuse, the court presumes an award of joint managing conservatorship is in the child's best interests. In a joint conservatorship, the court will evaluate what is best for the child and will grant specific rights to each parent. The court may still designate one parent as the primary managing conservator (custodial parent) and the other parent as a possessory joint managing conservator.

A judge will not appoint both parents as managing conservators if it would significantly impair the child’s physical health or emotional development. To decide joint custody, the court will evaluate a specific set of factors, which include:

  • whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators
  • if both parents can give priority to the welfare of the child
  • whether each parent can encourage and accept a positive relationship between the child and the other parent
  • whether both parents participated in raising the child before filing for divorce or custody
  • the proximity of the parents’ homes to each other, and
  • the child's preference regarding custody, if the child is at least 12 years old.

Possession and Access

Possession and access are the same as physical custody. Possession generally means each parent’s physical visitation time with the child and which parent will be responsible for the child’s daily needs. Access refers to other methods of visitation, such as Skype, telephone calls, texting, and other social media.

If the court awards joint physical custody, it doesn’t prohibit the judge from designating one parent. Additionally, the court can:

  • advise the custodial parent that they have the right to decide where the child lives
  • identify a specific geographical area within which the custodial parent must maintain a residence for the child, or
  • specify that the custodial parent may determine the child’s primary residence without regard to location.

If a court designates one parent as the primary caretaker, the next step is to determine a possession and access (visitation) schedule for the noncustodial parent and the child. Parents should work together to determine a schedule that will work best for their family. If parents can agree, they will present their parenting plan to the court for approval. When creating a custody arrangement and visitation schedule for your family, you should consider:

  • holidays and school breaks
  • mid-week and weekend visitation
  • pick-up and drop-off locations and responsibilities, and
  • who will pay for transportation costs.

If parents can’t agree, Texas courts offer a standard and expanded standard parenting time schedule. The standard schedule is the default schedule, which offers the minimum amount of parenting time for the noncustodial parent. Unless the custodial parent can prove that it is not in the child’s best interest, the standard schedule will include:

  • one mid-week visit
  • visitation on the 1st, 3rd, and 5th weekends
  • alternating holidays, and
  • summer vacation.

In cases where the noncustodial parent is very involved in the child’s life, the court may award an expanded standard possession schedule. This schedule offers the same weekend, holiday, and summer break visitation, but offers the non-custodial parent one additional overnight per week. Over time, this extra time will add up to give the parent significantly more visitation with the child than the standard schedule.

How Does the Court Determine Custody?

In Texas, family law courts recommend and prefer that parents work together to determine their ideal custody arrangements. If parents can’t agree, a court will decide custody based on the best interests of the child, which must be determined by considering the following general factors:

  • the child’s preference
  • the child’s emotional and physical needs now and in the future
  • the emotional and physical danger to the child now and in the future
  • each parent’s ability to parent
  • programs available to the parents to promote the best interest of the child
  • plans for raising the children created by the parents
  • stability of each parents’ home
  • acts or omissions of the parent that indicate that the parent-child relationship is not proper, and
  • any excuse for the acts or omissions of the parent.

Can I Modify Custody?

Once the court creates a parenting plan, both parents must follow it precisely. A judge may modify a previous custody order if:

  • the parents agree to a modification
  • the child is at least 12 years old and asks the court for a change in custody
  • the custodial parent relinquishes custodial rights, or
  • a parent can show that there has been a material and substantial change in circumstances for the child or the parent since the last order.

When a parent, or child, wishes to change custody, he or she will need to file a motion (application), pay a filing fee, and attend a court hearing. Until the court modifies a custody order, the existing order will remain in effect.

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