Texas Child Custody Attorneys Fight to Protect Your Rights

August 18, 2022 | Kate Smith

When parents split up, unfortunately, children are often caught in the crossfire. The emotional strain of divorce coupled with a desire to protect your child’s future can be a chaotic mix. It doesn’t help that Texas child custody laws are extremely nuanced and often confusing even to practicing attorneys. In this article, you will learn more about Texas child custody laws and how an attorney can help you preserve your parental rights.

Bottom Line

The child’s best interests are at the heart of every custody case. Generally, a judge presumes it is best that both parents are in the child’s life unless there are serious issues, like abuse.

Topics to Explore

Texas Child Custody Terms

Most people are familiar with terms such as “custody” and “visitation” as they relate to children and divorce. However, Texas law uses the terms conservatorship, possession, and access.

A parent has possession of a child when the child is under his or her care.

Access is a blanket term referring to any communication a parent has with a child, as well as that parent’s presence at the child’s activities.

We’ll learn more about conservatorships below.

Types of Child Custody Conservatorships

In Texas, a person who has custody of a child is called a conservator. There are three types of conservators:

  • joint managing conservator
  • sole managing conservator
  • possessory conservator

Joint Managing Conservatorship

In a joint managing conservatorship, two people (generally the child’s parents) share the rights and responsibilities to make decisions concerning the child. Texas Family Code § 101.016

However, the court may award one parent the exclusive right to make certain decisions. A court order will spell out which decisions both parents must agree upon, which decisions are left exclusively to one parent, which decisions are exclusively left to one parent after meaningful consultation with the other parents, and which decisions can be made by either.

A Joint Managing Conservatorship Does Not Mean Equal Parenting Time

A joint managing conservatorship does not mean the child’s time is split equally between the parents’ homes. A possession order will outline when each parent has the right to spend time with the child.

Sole Managing Conservatorship

Texas child custody courts prefer to name both parents joint managing conservators. However, the court will designate one parent as the sole managing conservator if it is in the best of the child.

Generally, a sole managing conservatorship is ordered when there is a history of family violence, child abuse or neglect, substance abuse by one parent, or if there is a history of no financial support for the child by one parent.

A parent may also be named sole managing conservator if the other parent has been largely absent from the child’s life.

The Rights of a Sole Managing Conservator

Unless limited by a court order, a parent appointed as sole managing conservator has the exclusive right to:

  1. designate the primary residence of the child
  2. consent to medical, dental, and surgical treatment involving invasive procedures
  3. consent to psychiatric and psychological treatment for the child
  4. receive periodic child support payments and hold or disburse these funds for the child’s benefit
  5. represent the child in legal action and make other significant legal decisions concerning the child
  6. consent to the child’s marriage and military enlistment
  7. make decisions about the child’s education
  8. apply for, renew, and maintain possession of the child’s passport

Tex. Fam. Code § 153.132

Possessory Conservatorship

If one parent is named the managing conservator, the court will typically appoint the other parent as possessory conservator:

When a trial court appoints a parent possessory conservator, it can conclude that unrestricted possession would endanger the physical or emotional welfare of the child, but that restricted possession or access would not. In re Marriage of Patel, 643 S.W.3d 216, 218 (Tex. App. 2022)

Essentially, a possessory conservator has visitation rights (“access”) to the child. Texas family courts have previously held that a possessory conservator has the following rights while the child is in their custody:

  1. the duty to care, control, protect, and reasonably discipline the child
  2. the duty to provide the child with clothing, food, and shelter
  3. the power to consent to medical and surgical treatment during an emergency involving immediate danger to the child’s health and safety

Davis v. Davis, 734 S.W.2d 707, 708 (Tex. App. 1987)

As with most Texas child custody issues, this is subject to any limitations expressed in the divorce decree.

What is in the Child’s Best Interests?

This is the gold standard in Texas child custody cases. The best interest of the child is always the court’s primary consideration in determining the issues of conservatorship and possession of and access to the child. Tex. Fam. Code § 153.002

Typically, courts presume that it is in the child’s best interests to grow up with both parents playing an active role in their life. This can change if one parent is abusive or has substance abuse issues.

Other Factors Considered by Texas Child Custody Courts

Here are a few other factors that a judge will consider in Texas child custody cases:

  1. the child’s current and future emotional and physical needs
  2. the ability of each parent to provide for the child’s emotional and physical needs
  3. the stability of each parent’s home environments
  4. the existence of or potential for emotional or physical danger to the child
  5. the parental abilities of each person seeking custody
  6. the programs available to assist the parents in promoting the best interest of the child
  7. the parents’ plans for the child by the individual seeking custody
  8. the acts or omissions of the parent that may indicate that the existing relationship is not a proper one
  9. any excuse for the acts or omissions of the parent. 
  10. the wishes of the child (for older children)

Wright v. Berger, No. 01-18-00964-CV, 2020 Tex. App. LEXIS 3340, at *1 (Tex. App. Apr. 21, 2020)

Let’s take a closer look at the above-cited case.

Background: Wright v. Berger

A Fort Bend County trial court appointed ex-spouses Shelby Wright and Mark Berger joint managing conservators of their 8-year-old son. Although the boy had lived with his mother in Dallas since age 2, the trial court granted Mark the exclusive right to designate his son’s primary residence in Fort Bend County or a neighboring county. The court also gave Mark the exclusive right to make decisions concerning the boy’s education, after consulting with Shelby.

The Mother Appeals

On appeal, Shelby argued that Mark had been “controlling, manipulative and derogatory” and had not supported her during the first two years of their son’s life.

However, the First Court of Appeals found that Mark had encouraged and supported his son’s relationship with Shelby. He made sure their son called Shelby during his parenting time. He invited Shelby and her parents to birthday parties and other celebrations. Lastly, he agreed to let Shelby make up visitation after inclement weather disrupted her time with their son.

Court Rules in Dad’s Favor

By contrast, Shelby made disparaging comments about Mark in front of their son. Occasionally, she would not allow the boy to answer video chats or phone calls from his father. She also informed their son’s school that because she was his primary caretaker under the temporary court orders, the school had to tell her any time it communicated with Mark.

The appeals court ruled that granting Mark exclusive residential and educational decision-making rights was in the child’s best interests.

Creating a Parenting Plan in Texas

When a couple with children divorces, Texas family courts encourage them to develop their own custody arrangements. This is known as a parenting plan. Texas law requires a parenting plan to be submitted with the final divorce decree. Tex. Fam. Code § 153.603

There are four goals of a parenting plan:

  1. set out the rights and responsibilities of each parent
  2. decide custody and visitation arrangements
  3. provide for child support
  4. optimize the development of a close and continuing relationship between each parent and the child

Tex. Fam. Code § 153.601

Possession and Access Schedules

Your parenting plan should always include a possession and access schedule. A possession and access schedule provides a structured blueprint for co-parenting. It should address exchange times, weekday and weekend visits, holidays, your child’s birthday, spring and summer break, and other important events in your child’s life.

Making Your Own Possession and Access Schedule

You can submit a customized possession and access schedule to the court. Below are some common examples.

Week-on-Week-off Custody and Visitation Schedule

The week-on-week-off schedule is a residential schedule where your child spends one week with one parent and then the following week with the other. 

4-3 Custody and Visitation Schedule

The 4-3 schedule is a residential schedule where your child spends four days a week with one parent and the remaining three days with the other.

For example: some 4-3 schedules start on Sunday with exchanges at 8:30 a.m. You can start the schedule on any day and choose any exchange time.

2-2-5-5 Custody and Visitation Schedule

In the 2-2-5-5 residential schedule, your child lives two days with one parent, then two days with the other parent. This is then followed by five days with the first parent and five days with the second parent.

What Should I Consider When We Create a Parenting Plan?

Always consider your child’s unique needs when making a parenting schedule. Those needs may change as the child gets older, so it’s important to keep that in mind as well.

Additionally, Texas child custody courts prefer children to have frequent contact with both parents if that is in their best interests. Keep that at the forefront as well.

The Texas Standard Possession Order

If you and your child’s other parent are unable to reach an agreement on a possession and access schedule, a judge will typically award the Texas standard possession or expanded standard possession order.

You and your co-parent can also opt for the standard possession or expanded standard order in the beginning, rather than creating your own.

Under the Texas standard possession order or expanded standard, the child lives primarily with one parent. The available options for these standard possession orders can change based on how far apart the parents live from one another.

Parents 51 to 100 Miles Apart

If the parents live within 100 miles of each other, the non-custodial parent has parenting time with the child:

  • Every first, third, and fifth weekend from 6 p.m. Friday to 6 p.m. Sunday
  • Every Thursday during the school year from 6 p.m. to 8 p.m.

If your child has a school holiday the Friday before a weekend visit, the visit starts on Thursday at 6 p.m. If your child has a school holiday the Monday after a weekend visit, the visit is extended until Monday at 6 p.m.

Summer Break

The Texas standard possession order grants the noncustodial parent 30 days with the child during summer.

That summer stay is typically July 1-31 unless the noncustodial parent notifies the other parent before April 1 that he or she would like different days.

The custodial parent gets one weekend with the child during his or her summer stay with the other parent.

When Parents Live Over 100 Miles Apart

When parents live more than 100 miles apart, the standard possession order changes in the following ways:

  • The noncustodial parent can choose to have one weekend with the child per month instead of visits on the first, third, and fifth weekends (if the noncustodial parent gives 14 days’ notice).
  • The noncustodial parent has the child during spring break every year.
  • The noncustodial parent will spend 42 days of summer break with the child (June 15 to July 27, unless different dates are scheduled by April 1).
Extended Standard Possession Order

A noncustodial parent can always ask the judge to extend the standard possession order. The extended standard possession order gives the noncustodial parent two extra overnight visits with the child each week during the school year.

The extended order is similar to the standard order, with the following exceptions:

  • The weekend stay starts when the child gets out of school Friday and ends when the child starts school Monday.
  • The midweek stay starts when the child gets out of school Thursday and ends when the child starts school Friday.
  • Holiday possession starts when the child gets out of school.

New Visitation Law for Parents 50 Miles Apart or Less

A new law passed in 2021 provides that Texas family courts will automatically grant the extended standard possession order if the parents live 50 miles or less from one another.

However, exceptions do apply. They include:

  1. the noncustodial parent opts out of some or all of the extended order.
  2. the court is denying, restricting, or limiting the noncustodial parent’s visitation in the best interest of the child; or
  3. the court finds that some or all of the extended times are not in the best interest of the child.

Tex. Fam. Code § 153.3171

50/50 Possession

Occasionally, a Texas child custody court will rule that a child should split his or her time equally with both parents, rather than primarily living with one or the other. In this case, the judge will often require the parents to live within a smaller geographical area than usual.

True 50/50 possession is rare in Texas child custody cases, as it is generally thought to benefit the parents more than the children.

Possession and Access Orders for Children Under 3

For children three years and younger, a judge will usually grant a possession and access order specifically tailored to young children. State law requires a Texas child custody court to consider the following:

  1. each parent’s caregiving history
  2. how the child handles separation from either parent
  3. each parent’s availability and willingness to care for the child
  4. the child’s physical, medical, behavioral, and developmental needs
  5. the parents’ physical, medical, emotional, economic, and social conditions
  6. other people who will be around when each parent has the child
  7. the presence of siblings during periods of possession
  8. the child’s need to develop healthy attachments to both parents
  9. the child’s need for routine
  10. the location and proximity of the parents’ homes
  11. the parents’ abilities to share in the responsibilities, rights, and duties of parenting
  12. any other evidence of the best interest of the child

Tex. Fam. Code § 153.254

These schedules may shift to the standard possession order after the child’s third birthday, or they could incrementally change as the child grows.

Schedule a Free Case Assessment

If you have children and are getting divorced, your first move should be to contact a family law attorney. A Texas child custody lawyer can guide you toward an amicable parenting agreement that considers your child’s unique needs. Call 214-884-3775 today to begin your free case assessment.

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