How Do You Get Full Custody of a Child in Texas?

Your marriage has ended, and you want the children in your primary care. Whether you believe you’re the more reliable parent or you have other reasons, you need the court to see things your way if you want full custody. This article spells out how you can get full custody of your child, starting with hiring an attorney to help you build a compelling case for the judge.

In this Guide 

• • Texas Custody Terms
  • Parental Rights and Duties in Texas
  • Two Paths to Full Custody
  • Terminating the Other’s Parental Rights

A Quick Look at Texas Custody Terms

In Texas, the legal term for “custody” is conservatorship, and there are two kinds: 

Sole managing conservatorship gives one parent total say in all important matters regarding the children, including their health, residence, education, religion, and culture. This is what most people outside the legal system refer to as “full custody.” 

Joint managing conservatorship, or “joint custody,” is when parents share the decision-making for most child-related issues. Texas Family Code § 101.016 

A joint managing conservatorship arrangement does not mean each parent gets equal time with the child. Instead, one parent is usually the primary or custodial conservator, and the other parent is the non-custodial conservator. However, in this situation both parents may weigh in on important decisions regarding the children. Joint managing conservatorship is the default in Texas courts.

Parental Rights and Duties in Texas

Family law courts have wide discretion to tailor parenting plans based on each case’s unique circumstances. Judges always prioritize the best interests of the child to determine each parent’s rights and responsibilities.

“The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” — Tex. Fam. Code § 153.002 

Let’s take a look at what it looks like to be a sole managing conservator.  

Sole Managing Conservator Rights and Duties

When you pursue “full custody” in Texas, you ask the court to grant you sole managing conservatorship, or SMC. You’ll be the only parent who can make decisions about your child. 

Full custody gives you exclusive right to:

• choose your child’s primary residence,
• consent to your child’s medical, dental, and surgical treatment,
• consent to mental health care for your child or children,
• receive child support,
• decide where and how your child is educated,
• consent to your child marrying or enlisting in the armed forces,
• access money earned by your child,
• act on your child’s behalf in matters involving their estate, and
• apply for, renew, and hold your child’s U.S. passport.

— Tex. Fam. Code § 153.132 

A Note About Choosing Residence 

The court may restrict your child’s primary residence by imposing a geographic restriction. This is to ensure the non-custodial parent’s right to access and visitation. Relocating with your child to an area outside the permitted zone is likely to require permission from the other parent and court approval.

Joint Managing Conservator Rights and Duties

In a joint custody arrangement, ex-partners share parental rights, duties, and decision-making authority — but not necessarily fifty-fifty. 

The court specifies which decisions the parents must agree upon, which ones are left exclusively to one parent, and whether there are any calls either parent can make on their own. The court qualifies each of the rights as duties with the following terms; “the right, subject to the agreement of the other parent”, “the exclusive right”, or “the independent right”. Independent rights can also require meaningful consultation with the other parent. 

 — Tex. Fam. Code §§ 153.071, 153.073; see § B2.06[3]

Joint conservators can make everyday choices without consulting the other parent, but major decisions — think education, psychiatric treatment, invasive medical care — require agreement.

Courts will determine which parent has primary custody. This is the parent the children will live with and with whom they’ll spend most of their time. The other parent will have visitation rights, or access, to the children. 

Now that you have an understanding of the types of custody, let’s look at how you can get sole custody of your child.

Two Paths to Full Custody

Obtaining sole custody is very involved. In addition to filing paperwork with the court, you must mount a credible case that your ex is unfit to make sound decisions about your child. 

There are two routes you can take to accomplish this: file a SAPCR or have your ex’s parental rights terminated.   

File a SAPCR 

Once you file for divorce, you must ask the court to consider giving you full custody. You’ll file what’s called a Suit Affecting the Parent-Child Relationship, or a (SAPCR). Lawyers pronounce it as “SAP-sir.”

The sooner you file a SAPCR, the better. Not only will you demonstrate urgency, you’ll give the court time to investigate the matter and consider whether your request is in your child’s best interest.

Most original Petitions for Divorce will include the required language, but If you filed for divorce without a SAPCR, you should file an amended petition as soon as possible. Your family law attorney can assist you with this. 

Points Deciding Child Custody, Possession, and Access 

Once you’ve petitioned for full custody, the court will weigh a number of factors to make its decision. 

The biggest factor considered is whether either parent has shown an inability or unwillingness to adequately care for the child. For instance, have you or the other parent ever used physical force against the child? Does either parent have a history of domestic violence, substance abuse, criminal behavior, or extremely irresponsible behavior?

The court also takes into account:

• your child’s physical and emotional needs
• whether you or your ex are a danger to your child
• your specific plans for the child
• the stability of each parent’s home
• your and your ex’s parenting skills
• how willing you and your ex are to cooperate
• which parent has been the child’s primary caregiver
• how close the parties live to each other
• the possibility of keeping siblings together
• what the child prefers, if they are 12 or older

Proving Your Case 

In addition to all of the factors listed above, the court wants to see evidence. This is called the burden of proof, and in Texas child custody cases you have to present “clear and convincing evidence.” This requires that you show the truth of the other parent’s unfitness with enough certainty to create a firm belief.

This standard is not as high as a criminal trial’s “beyond a reasonable doubt” standard, but it’s a higher bar than “a preponderance of the evidence,” as employed in some civil litigation cases. 

Demonstrating a Parent is Unfit

Whether a parent is deemed unfit is largely up to the interpretation of the judge presiding over the case. However, the court tends to begin at the notion that a parent is unfit to raise a child if allowing them to do so would significantly impair the child’s physical or emotional health and development.

Negligent and abusive behavior makes a strong argument that a parent is unfit. This can include proof of:

•   Sexual offenses
•   Emotional abuse
•   A history of drug or alcohol abuse in the child’s presence
•   Unfit or unsanitary living conditions
•   An unstable or unsafe environment for the child
•   A history of family violence, particularly against the child

It’s imperative to present a compelling case that can withstand the scrutiny of a fact-finding investigation. Effective evidence against an unfit parent can include:

•   Police reports
•   Protection or restraining orders
•   Phone logs, especially calls to 911 or other emergency personnel
•   Text messages and/or emails
•   Court documents
•   Medical reports
•   Witness statements
•   Photographs of poor living conditions
•   Photographs showing injuries from abuse

If you believe your child, or any child, has been abused by a parent or other family member, you can call the Texas Child Abuse Hotline at 1-800-252-5400 in an emergency situation, or file a child abuse complaint online.  

Penalty for False Allegations 

Do not lie to the court. If you knowingly make false or exaggerated claims of child abuse or neglect, you’ll damage your chances at full custody and incur the anger of the court. 

You could be fined $500 and ordered to pay the other party’s attorney fees and court costs related to the false accusations, including the cost of expert testimony.

Your false report will also become admissible evidence against you in your case for sole managing conservatorship. — Tex. Fam. Code § 153.013(b) 

Unfit, but Still a Parent 

If you win your SAPCR by showing the other parent is unfit, you are still one of two parents. Texas wants both parents involved in their children’s lives, when possible. The courts usually hope an unfit parent will reform over time.

Even when you have sole managing conservatorship, the other parent may be entitled to visitation with the child. This is formally called possession and access. The court can order supervised visits if it feels it’s necessary due to the parent’s history or relationship with the child.

Supervised access is when the parent cannot spend time with their child unless another adult is present. This could be a relative, a family friend, or even a professional agency that provides the service for a fee. 

Terminate Your Ex’s Parental Rights

Terminating parental rights is the process of legally severing the relationship between a parent and child. It is final. Once severed, the parent who has been cut off cannot restore their rights and duties to the child without proving that the termination should not have happened in the first place. 

A parent whose rights have been terminated no longer has rights to custody, access, or any say in the child’s upbringing, including their education or religion. This parent also does not have a right to receive information about the child. 

Finally, terminating a parent’s rights also ends their financial obligations to the child. Any child support payments from that parent end. 

An Extreme Measure for Extremely Bad Parents

Except for clearing a path for legal adoption, Texas courts are reluctant to sever a parent-child relationship. However, they will do it if clear and convincing evidence shows the child is better off with a single parent — even without adequate financial support — than continuing to have a legal relationship with the unfit parent. 

Under Tex. Fam. Code § 161.001, you must be able to establish a firm belief that the other parent is a danger to the child in one or more of the following ways: 

Abandonment

An abandonment charge has three similar, but distinct elements: 

1. The parent voluntarily left the child or children alone, or with someone who isn’t their parent, for up to three consecutive months without providing for adequate support, and no intention of returning, or without expressing any intention of returning.
2. The parent voluntarily left the child alone, or with someone who isn’t their parent, for up to six consecutive months without providing for adequate support, even if they expressed an intention of returning.
3. A father voluntarily deserted the mother after becoming aware of her pregnancy, with no intention of returning, and without providing support.

Abandonment is a difficult charge on which to win involuntary termination against an unfit parent, due to the careful language in the Family Codes. 

For example, in Holick v. Smith (Texas, 1985), the state Supreme Court reversed lower court rulings that had terminated the biological mother’s parental rights after she left her two young children with another couple to go seek employment in a new city. The high court said the statute only required the mother to make arrangements for adequate support of her children, not to personally support them. 

Endangerment

Endangerment occurs when a parent knowingly places or leaves a child in conditions that threaten their physical health or emotional well-being. Endangerment can also take place when the parent intentionally participates in an activity or endeavor that can physically or emotionally harm the child. 

Courts may also consider a parent’s behavior even before the child’s birth, particularly when a pregnant mother has been physically abused or has used illegal drugs. 

It’s easier to achieve involuntary termination through an endangerment charge because the law recognizes many situations where a child can be left in harm’s way, such as: 

•   Unsanitary conditions — In re M.C., (Tex. 1996) 
•   Failing to address child abuse, even if the parent sought prompt medical care for the child — In re J.P.B., (Tex. 2005) 
•   Exposing the child or children to abusive partners — In re M.N.G., (Tex. App.–Fort Worth 2004) 
•   Neglect and attempted suicide or suicidal ideation by the parent,  — Leal v. Tex. Dep’t of Protective and Regulatory Servs., (Tex. App.–Austin 2000) 

Child Abuse

Child abuse happens when a parent causes serious physical, mental, and emotional harm to a child, either through intentional actions or negligence. The Texas Family Codes (§ 261.001) lay out a more specific and detailed definition, covering everything from sexual abuse to negligence, threats, or behavior which leaves “an observable and material impairment in the child’s growth, development, or psychological functioning.” 

Note: If a parent has been convicted of child sexual abuse, it does not matter if the act was directed against their own child, nor does it matter if their child was aware of the sexual abuse. (In the Interest of S.F., Tex. App. 2004)

Neglect  

Texas defines neglect as leaving a child exposed to significant risk of physical or mental harm without arranging necessary care and supervision. A parent who fails to provide food, clothing, or shelter necessary for sustaining their child’s life and health is considered neglectful, unless the parent lacked the financial means to provide.

Neglect is leaving a child in a situation no reasonable adult would allow, which requires maturity and judgment beyond the child’s capacity. Not seeking or following through with medical or psychiatric care for the child, with such laxness resulting in bodily injury or a substantial risk of death, disfigurement, or serious injury, also is considered neglect.

“Neglect can be as harmful to a child’s physical, mental, and emotional well-being as intentional abuse.” — In re M.C. (Tex. 1996) 

Substance Abuse 

A parent who abuses illegal or prescribed drugs and narcotics can be considered a risk to the health and safety of their child. However, Texas courts aren’t likely to involuntarily terminate parental rights over the parent’s drug use alone.  

What must be shown by clear and convincing evidence is that this parent has caused “physical, mental, or emotional injury to the child ..” (Tex. Fam. Code Sec. 261.001 (J)) through their drug abuse; or that the parent has permitted or encouraged the child to use illegal drugs as well. 

Criminal Behavior and/or Incarceration  

Doing time in jail or prison is not, by itself, considered endangerment. However, a parent’s history of criminal behavior must be taken into account, especially if the crimes involve violence, sexual abuse, drug abuse and/or drug trafficking. 

Texas courts have also ruled that it is considered endangerment when a parent knowingly jeopardizes their parental rights by committing crimes they can be incarcerated for. 

A 1998 case ruled that a parent’s “consistent inability to avoid criminal activity implies a conscious disregard for (their) parental responsibilities.” — In re J.N.R., (Tex. App.–Houston [1st Dist.] 1998) 

Texas Courts Prefer Joint Custody

While it is possible for one parent to win full custody of the children after a divorce, it is usually an uphill climb, legally. Texas courts begin every custody case with the presumption that it’s always better for the divorced parents to share custody in a joint managing conservatorship.

“It is a rebuttable presumption that the appointment of a child’s parents as joint managing conservators is in the child’s best interest.” — Tex. Fam. Code § 153.131(b). 

We Know How to Win Child Custody Cases

Yes, you’re getting divorced, but the children you shared with your former spouse still mean the world to you. If you believe having full custody is in your children’s best interests, you need an experienced Robinson & Henry family law attorney to help you make it happen. Get some peace of mind. Call 214-884-3775 today to begin your case assessment.