How Do Courts Decide Who Gets Custody of a Child in Texas?

When parents divorce, one of the biggest worries is often about the kids. Who will they live with? Will you lose time with them? Will you have to fight for “custody” or what’s referred to in Texas as “conservatorship”? These fears are common, but in Texas, the reality is often much less scary than you might think.

In Texas, courts start with the idea that both parents should stay involved in their children’s lives. This means that in most cases, you won’t have to “split up the kids” or lose your relationship with them.

Instead, Texas law encourages parents to share rights and responsibilities. Let’s look at how this works and what it means for your family.

Child Custody in Texas

Texas doesn’t use the term “child custody” when referring to a parent’s right to their child. Instead, we use”conservatorship,” and there are two main types:

1. Joint Managing Conservatorship (JMC): This is the most common arrangement, where both parents share rights and duties regarding their child.
2. Sole Managing Conservatorship (SMC): In this arrangement, one parent has exclusive rights to make certain decisions for the child.

Conservatorship is separate from possession and access (visitation) schedules. A parent can be a joint managing conservator but still have limited time with the child.

The “Best Interest of the Child” Standard

In Texas, as in most states, the primary consideration in any custody decision is the “best interest of the child.” This standard is the North Star guiding all custody determinations. But what does it mean?

The Texas Family Code doesn’t provide a specific definition of “best interest,” but courts typically consider a wide range of factors, often referred to as the Holley factors, named after a 1976 Texas Supreme Court case.

These factors include:

• The child’s desires (if the child is old enough to express a reasonable preference)
• The emotional and physical needs of the child, now and in the future
• Any emotional or physical danger to the child, now and in the future
• The parental abilities of the individuals seeking custody
• The programs available to assist these individuals in promoting the child’s best interest
• The plans for the child by these individuals or the agency seeking custody
• The stability of the home or proposed placement
• The acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one
• Any excuse for the acts or omissions of the parent

Additional Factors Courts Consider

Beyond the Holley factors, Texas courts may also take into account:

• The child’s age and gender: Younger children, especially infants, may benefit from more time with the primary caregiver.
• Each parent’s living situation: The court will consider the stability and safety of each parent’s home environment.
• The child’s established living pattern: Courts often try to maintain consistency in a child’s life, including school, community, and social relationships.
• Each parent’s willingness to support the child’s relationship with the other parent: Texas courts value co-parenting and may favor the parent who demonstrates a willingness to foster the child’s relationship with the other parent.
• Any history of domestic violence or substance abuse: These issues can significantly impact custody decisions, potentially leading to supervised visitation or even termination of parental rights in severe cases.
• The child’s physical and emotional health needs: If a child has special needs, the court will consider each parent’s ability to meet those needs.
• The geographical proximity of the parents’ homes: This can affect the feasibility of different possession schedules.

The Presumption of Joint Managing Conservatorship

In Texas, there’s a presumption that Joint Managing Conservatorship (JMC) is in the best interest of the child. This means that, unless there’s a compelling reason not to, the court will likely award JMC to both parents. However, it’s crucial to understand that JMC doesn’t necessarily mean equal time with the child.

Even in a JMC arrangement, one parent is typically designated as the parent with the exclusive right to determine the child’s primary residence. This parent is often referred to as the “primary conservator” or “custodial parent.”

When Sole Managing Conservatorship May Be Awarded

While JMC is the presumption, there are situations where a court might award Sole Managing Conservatorship (SMC) to one parent.

These situations often involve:

• A history of family violence
• Substance abuse issues
• Neglect or abandonment of the child
• A parent’s absence from the child’s life
• Extreme conflict between the parents that makes co-parenting impossible

Even if SMC is awarded, the other parent usually still has some possession and access rights, unless the court determines that would endanger the child’s physical or emotional well-being.

Mediation and Agreed Parenting Plans

At Dodson Law Firm, PLLC, we believe in the power of collaboration and often encourage our clients to consider mediation before resorting to litigation. Texas courts also favor agreed parenting plans, where parents work together to create a custody arrangement that works for their family.

If parents can agree on a parenting plan, the court will usually approve it, assuming it serves the child’s best interests. This collaborative approach often leads to more satisfactory outcomes for all involved, especially the children.

In most family law matters, a court will order the parents to mediate before a trial date will be set, encouraging co-parents to make their own decisions in the best interests of their children.

Modifying Custody Orders

It’s important to remember that custody orders are not set in stone. As children grow and circumstances change, it may become necessary to modify the existing order.

In Texas, you can request a modification if:

• There has been a material and substantial change in circumstances
• The current order has become unworkable or inappropriate
• The child is 12 or older and expresses a preference to change the primary residence (though this alone is not determinative)

The Dodson Law Firm, PLLC Difference

At Dodson Law Firm, PLLC, we believe that child custody cases aren’t legal battles to be “won”, but chances to create plans that put children first. We focus on what’s best for the kids, not on defeating the other parent.

Our approach is grounded in our core values of integrity, compassion, and clarity. We provide our clients with the knowledge and support they need to get through this process.

Every family situation is different, and there’s no one-size-fits-all solution when it comes to child custody. If you’re facing a custody dispute near Houston, Texas, contact Dodson Law Firm, PLLC, today to schedule a consultation with one of our experienced family law attorneys.