Texas child custody: a primer on a complex topic

Texas child custody law is complicated and unique as compared with that of other states.

What Texas child custody law has in common with every other state is the firm requirement that at every step of the custody decision-making process, the most important consideration is the best interest of the child. In other ways, Texas child custody law is unique. It uses a different vocabulary than other states and some aspects of its child custody laws are relatively distinctive.

Any Texan facing a divorce with children is naturally extremely concerned about custody and visitation. It is wise to consult an experienced Texas family lawyer as early as possible to understand the law and how it is likely to impact the family. From an informed place, the spouse can approach divorce, whether it is resolved through negotiation or in court, with more confidence and understanding on which to base decisions. Legal counsel will guide him or her at every step and provide vigorous advocacy if necessary.

In Texas statute, custody is called conservatorship; a custodial parent a managing conservator; and a parent with visitation rights a possessory conservator. Still, Texans in writing and speaking also use traditional custody terms.

In a Texas divorce, the parents can be appointed as joint managing conservators or one may be appointed the sole managing conservator.

If there is a sole managing conservator, the other parent is usually a possessory conservator with visitation rights. The sole managing conservator must choose the child's primary residence as well as make major life decisions for the child.

In other states, the custodial role is split into two parts: legal custody and physical custody. Both may be jointly or solely held. A parent with legal custody makes major life decisions for the child and one with physical custody has the child living with him or her a significant amount of time.

These concepts are combined in the managing conservatorship role in Texas. If the parents are appointed joint managing conservators, the court order will set out how the rights and responsibilities will be split between them, exercised by each of them alone or shared if they can work together. One of them will have exclusive power to designate the child's primary residence.

The judge is directed to consider all relevant factors, including these specific things, in deciding whether to appoint the parents jointly:

  • Whether the child's needs and development would benefit from having both parents as managing conservators
  • Whether the parents can put the child's welfare first and make decisions together in the child's best interest
  • Whether both parents can encourage a positive relationship between the child and the other parent
  • Whether each has actively raised the child
  • How close the two parental residences will be
  • The preference of a child 12 or older regarding which parent should decide the primary residence of the child

Matters of custody and visitation will be decided by the judge in the divorce unless the parents can reach an agreement on the issues in a parenting plan, which would resolve all matters of conservatorship, including a schedule for possession if necessary. The court is required to accept the plan unless it is not in the child's best interest, in which case the judge can order a revised plan. If a satisfactory parenting plan is ultimately not submitted to the court, the judge will create one.

Attorney Mark M. Childress of Mark Childress, PC, of Fort Worth, represents and advocates for divorce clients in custody and visitation matters and in all other related issues in Fort Worth and throughout the Metroplex.