Where will your children live? How often will you see them? Who decides where they go to school, who their doctor will be, and what their future should look like? Child custody in Texas, formally known as Conservatorship, is often the most difficult process to navigate during divorce proceedings. These emotionally charged decisions will shape your family for years to come, so it’s important to understand how child custody law works in Texas.
If you share children with your spouse and are planning to divorce in Texas, you have reached the right place. Texas custody law is far more structured than most expect, and we’ll go over the basics in this blog so you can feel better prepared for your case.
Child Custody In Texas
In this blog on Child Custody in Texas, we'll cover:
- What does Texas call child custody?
- What are the types of conservatorship in Texas?
- How does the court decide what is best for your child?
- How is parenting time actually divided?
- Can your child choose which parent to live with?
- Can a custody order be changed later?
- How do you get the best custody decision for your children?
What does Texas call child custody?
Texas does not use the word custody in its statutes. Instead, the law divides what most people call custody into two ideas: Conservatorship and Possession/Access. Conservatorship covers the legal rights and duties of a parent, including who makes decisions about education, medical care, and upbringing. Possession and access refer to the physical schedule, meaning when your child is with each parent.
What are the types of conservatorship in Texas?
Joint Managing Conservators
Two parents can share decision-making authority while a child still lives primarily with one of them. This is called Joint Managing Conservatorship.
If you and your spouse agree to be joint managing conservators, you will share the rights and duties of raising your child. Texas law presumes this arrangement is in your child's best interest, though that presumption can be rebutted. A finding of a history of family violence removes the presumption entirely, under Texas Family Code section 153.131. The court also may not appoint joint managing conservators when there is credible evidence of a history or pattern of child neglect or physical or sexual abuse, under Texas Family Code section 153.004.
It’s important to note that being named a joint managing conservator does not automatically mean you get equal time with your children. Texas Family Code section 153.135 states plainly that joint managing conservatorship does not require equal or nearly equal periods of possession. Decision-making and the calendar are decided separately.
Sole Managing Conservators & Possessory Conservators
If the court orders one parent, not both, to be in charge of the primary rights and duties, that parent becomes known as the sole managing conservator.
The other parent is then typically named a possessory conservator, meaning they are not a managing conservator but still have the right to time with the child. Under Texas Family Code section 153.191, the court appoints that parent as possessory conservator unless doing so would not be in the child's best interest and would endanger the child's welfare.
How does the court decide what is best for your child?
Under Texas Family Code section 153.002, the best interest of the child is always the court's primary consideration. The court also may not favor a parent based on sex or marital status, per Texas Family Code section 153.003. Mothers and fathers stand on equal footing under the law.
If your divorce is contested and you can't agree on conservatorship or other major factors, consider consulting a family law attorney to discuss your case and strategy for influencing the court's custody decision.
How is parenting time actually divided?
Most Texas orders start from a template called the Standard Possession Order (SPO), and Texas Family Code section 153.312 governs that SPO schedule for parents who live 100 miles or less apart. It gives the other parent the first, third, and fifth weekends of each month, a weekday period during the school year, alternating holidays, and an extended block in the summer.
When a possessory conservator lives within 50 miles of the child's primary residence, the court applies an expanded schedule by default, generally extending weekends and the Thursday period. This can be found under Texas Family Code section 153.3171.
You and your spouse are, however, not bound by these orders. Parents who agree on a different schedule that better suits their family can present it to the court. A family law attorney can help you present that case in a way that the court best understands.
Can your child choose which parent to live with?
No, your child does not get to choose. Under Texas Family Code section 153.009, if a parent files the proper request, the judge must privately interview a child who is 12 or older about their wishes, and may interview a younger child. What the statute does not do is hand the decision to the child. The judge listens, weighs the child's wishes as one factor among many, and decides based on what they perceive to be the child's best interest.
Can a custody order be changed later?
Yes, but not simply because circumstances feel different. Under Texas Family Code section 156.101, a court may modify an order when the change is in the child's best interest, and there has been a material and substantial change in circumstances since the last order.
How do you get the best custody decision for your children?
Custody is where the details in your divorce case carry the longest consequences, because the order you sign will shape your children’s lives for years. Consulting with a family law attorney is the fastest way to get answers about conservatorship, possession, and more.
If you still have questions about conservatorship, possession schedules, or a modification of your SPO due to material and substantial changes in your or your former spouse’s lives, the team at Ballard & Fleetwood, PLLC, is ready to help. We hope to hear from you.
References
- Texas Family Code section 153.131, Presumption That Parent to Be Appointed Managing Conservator. Texas Statutes, Texas Legislature. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm
- Texas Family Code section 153.004, History of Domestic Violence or Sexual Abuse. Texas Statutes, Texas Legislature. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm
- Texas Family Code section 153.135, Equal Possession Not Required. Texas Statutes, Texas Legislature. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm
- Texas Family Code section 153.191, Presumption That Parent to Be Appointed Possessory Conservator. Texas Statutes, Texas Legislature. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm
- Texas Family Code section 153.002, Best Interest of Child. Texas Statutes, Texas Legislature. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm
- Texas Family Code section 153.003, No Discrimination Based on Sex or Marital Status. Texas Statutes, Texas Legislature. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm
- Texas Family Code section 153.312, Parents Who Reside 100 Miles or Less Apart. Texas Statutes, Texas Legislature. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm
- Texas Family Code section 153.3171, Beginning and Ending Possession Times for Parents Who Reside 50 Miles or Less Apart. Texas Statutes, Texas Legislature. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm
- Texas Family Code section 153.009, Interview of Child in Chambers. Texas Statutes, Texas Legislature. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm
- Texas Family Code section 156.101, Grounds for Modification of Order Establishing Conservatorship or Possession and Access. Texas Statutes, Texas Legislature. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.156.htm
Disclaimer: This page on Child Custody in Texas and all of its contents, including any sources cited, are for informational purposes only and not for the purpose of providing legal advice. Use of and access to this article or any of the links contained within the article do not create an attorney-client relationship between the author and the user or browser. You should contact your attorney to obtain advice with respect to any particular issue or problem.