Child Custody FAQs

How is child custody determined in Texas?

Joint Managing Conservatorship is the preferred parenting arrangement in Texas.  Remember, Joint Conservatorship really applies to the allocation of parental rights and duties, not actual parenting time.  In other words, Joint Conservators don’t usually have 50-50 possession of the children. In a joint conservatorship, which can be created by agreement or court order, parental rights and duties will be allocated between parents to be exercised exclusively by one parent, independently by both parents, or subject to the joint agreement of both parents.  Chief among these rights and duties is the power to make medical and educational decisions on behalf of the children.

Even in a Joint Conservatorship, one parent is usually designated as the parent with the exclusive right to designate the primary residence of the children subject to a geographic restriction.  Such a restriction is often the county of residence and adjoining counties.  This is to allow the nonprimary parent to continue a close and ongoing relationship with the children.  To eliminate a battle over who is going to be “primary parent,” some enlightened parents will simply say neither is primary, but the residence of the child must be restricted to a geographic area such as county of residence.

When a family court is called upon to enter orders for a Joint Conservatorship in Texas and appoint a “primary parent,” the Court is empowered to consider many factors.  While lawyers are fond of spouting off lists of these factors, ultimately most court ruling are based on a gut-feeling about the situation, the children, and the parents in court.  If you simply must have a list, here’s one from a Board-Certified Family Law Specialist with over 30 years’ experience:

• Parenting history prior to separation – If one parent has been all things to the children while the other drinks and plays video games, no amount of rebranding will help the slacker parent.
• Ability to do more than feed and water children – Same thing here.  Courts are impressed by those parents who get things done such as homework, doctor’s appointments, social engagements and so forth.
• Work obligations – We all need to make a living and kids are expensive, but if a parent is required to travel overnight for work and works long or strange hours, it may simply be impractical for that parent to fill the primary role.
• Plans Post-Separation – Courts strive to maintain stability and a routine for kids.  If one parent is remaining in the family home and able to keep the kids in their school and routines, this is persuasive to the Court.
• New Relationships – If you’re not sworn to celibacy after one failed relationship and hooking up with someone new, you’d better make sure your new partner is of sterling reputation.  New partners with sketchy pasts will be a detriment to you in divorce court.
• Ability to foster a positive relationship with the other parent –  This is something overlooked far too often in divorce or custody cases.  Judges quickly tire of listening to parents bash one another in court.  Often a Judge will rant, “he/she was good enough to sleep with and bring a child into this world.”  Thusly, you might enhance your position in Court by committing to your child having a positive relationship with the other parent following divorce.
• Child preference- this factor is overrated in most cases.  Children love their parents and most of them do not wish to be put in position of having to choose one over the other.  Your Judge may frown on your efforts to put your children in the middle of your custody suit by having them interviewed as to their preferences.  Note also, the preference talk only comes into play when a child reaches age 12.  It’s more likely that child preference matters more to the Court when the child is 14 years-old or older.
• Addiction, family violence, and generally bad behavior- When the red-flags of family law are present, a Joint Conservatorship is out the window.  In these instances, Judges will aggressively protect children from the risk of exposure to such dangers and name one parent Sole Managing Conservator and award the other parent limited access to the children under supervision.

How is visitation determined in Texas custody cases?

Texas Courts give strong preference to the Standard Possession Order (SPO) and you should consider the SPO a starting point in any discussion about “parenting-time” with your children.  If you and the other parent live less than 50 miles apart, the SPO provides about a 55/45% allocation of parenting time.

If you have the “expanded” SPO, you’ll have parenting time every 1,3,5, weekend during the school year, beginning when school is dismissed on Thursday and ending when school resumes the following Monday morning.  Additionally, you will have Thursday night in the “off-weeks.”  Thanksgiving, Christmas Break and Spring Break rotate between the parents to equalize parenting time during these special times of year.  Finally, you’ll have up to 30 days of time with your kids during the summer.  You can either take 30 days continuously or break the time into smaller segments.

Contrary to popular belief, Family Court Judges are not inclined to order week-to-week parenting time.  However, many parents, with the help of their divorce attorney, will agree to such a parenting arrangement.  Kids do best in this arrangement when the parents live very close to one another and have demonstrated an ability to successfully co-parent their children without conflict.

Certain factors in your case could convince a Judge not to follow the Standard Possession Order and order a parent to have more restricted parenting time.  Such “red-flag” factors could include: a history or pattern of family violence; serious drug or alcohol abuse; mental health issues; the presence of questionable other adults in the home; lack of prior participation in the child’s life by the other parent; and current or prior involvement with Child Protective Services.  An experienced divorce or child custody attorney can help you gather and present facts a Family Court Judge will need to restrict parental access.

As children grow older, they have an increasing voice in custody matters.  By the time children reach their teens, they have the right to be interviewed by the Court to share their opinions as to with whom they wish to reside and how they want to spend time with the other parent.

If you’re serious about raising happy, emotionally stable children after your divorce or custody case is concluded, you’ll want to educate yourself on the essentials of effective co-parenting and bring the other parent into the process.  Using alternatives to trial such as mediation or collaborative law divorce allows parents to reduce tensions and creatively make a parenting plan that will work for both their children and themselves.

What is joint custody in Texas?

In Texas, everyone gets a trophy!  Here’s what I mean:  Long ago, Texas family court judges tired of parents fighting over their divorce orders would contain provisions for sole or joint custody.  The solution was to name just about everyone a “joint managing conservator” of their children.

As they say, “the devil is in the details.”  The Texas Family Code requires that certain parental rights, duties and responsibilities be allocated between parents.  So, you can be a joint managing conservator yet your former spouse could be awarded exclusive rights to designate the primary residence of the children, to make invasive medical and educational decisions, and even consent to psychological or psychiatric evaluation and treatment.

If you want to protect your parental rights and not just walk out of family court with the meaningless “joint managing conservator” label, seek representation from an experienced divorce lawyer.  You can go so far as to persuade a judge to require that all major decisions regarding your children be subject to the agreement of both parents.  You’ll feel better knowing you have full decision-making rights over your children!

There are two different types of joint custody:

1. Joint managing conservatorship or joint legal custody.
2. Shared physical custody.

Here, you might ask whether a joint conservatorship of the children implies parenting time will be shared equally.  The answer is an unequivocal “no.” Most often, Texas divorce courts will appoint one parent as the parent with the right to designate the primary residence of the children and award the Standard Possession Order to the non-primary parent.   While the newly expanded Standard Possession Order gives lots of parenting time (about 47%) it’s still not a 50-50 divide.

Because our Tarrant County family law courts remain reluctant to order an equal parenting schedule, you’ll need to strategize with your attorney to present your best case for a 50-50 schedule.  Focus on your meaningful participation in raising the children, your ability to meet their daily needs and encourage a positive relationship between the children and your former spouse.

And… do go into court saying you don’t want to pay child support… it doesn’t play well! You may be able, instead, to argue for a reduction in child support based upon your equal parenting time.

What are some reasons why a party might request sole custody in Texas?

A history or pattern of child abuse or neglect will cost you a joint conservatorship with your children.  Most frequently, a history of family violence either against a spouse or the children will make a court appoint one parent sole managing conservator with exclusive rights to make all significant decisions on behalf of the children.  A history of CPS involvement, positive drug tests, or criminal convictions is always a red-flag for family court judges.

To use Texas family code definitions, the law states a parent should be appointed a joint managing conservator of the children unless said appointment would “significantly impair the physical health or emotional development of the child.”

If you’ve had a slip and are at risk of losing some of your parental rights, you should consult a top divorce attorney to discuss strategies to rehabilitate your reputation and prove yourself worthy of being appointed a joint managing conservator.

Do courts prefer joint or sole custody in Texas?

Texas Family Courts have a strong preference for joint managing conservatorship over sole managing conservatorship when entering custody orders.  The idea is that both parents should have  an equal opportunity to participate meaningfully in rearing children of the marriage. Nevertheless, inside a joint conservatorship a parent can still be awarded certain exclusive rights such as the right to designate the children’s primary residence and to make critical life decisions on behalf of the children.

If both parents share custody, does anyone pay child support?

Yes.  Texas Child Support Guidelines require the non-primary joint managing conservator to pay child support as well as maintain health and dental insurance for the children.  The parent with the right to designate the primary residence of the children is almost always entitled to the receipt of child support from the other parent.  With more and more parents electing to share equal parenting time, outdated Texas child support laws can stall negotiations.  An experienced child custody attorney can help you enhance your negotiating position and develop creative alternatives to ensure your children have the resources they need and that you are not burdened with an unfair and unreasonable child support payment.

How is child support calculated in Texas?

Texas child support laws require the non-custodial, or non-primary as the case may be, parent to pay child support based on a percentage of his or her net resources.  Generally, think of “net resources” as all your income from whatever source, less taxes paid. From there, the child support guidelines say you take a percentage of net resources for each child: for one child it’s 20% of net; for two children it’s 25% of net; for three (lord help you) it’s 30% of net… and so on.  The Office of the Texas Attorney General has this child support calculator (Child Support Calculator)  If you are a high-wage earner, the support calculation is capped based upon the first $8,550 of your monthly net resources.

Additionally, when you’re ordered to pay child support the law also requires you to maintain health and dental insurance for your children.  If you don’t have such insurance available to you, you may be ordered to pay to pay the custodial parent an additional amount of money as “cash medical support.”

Remember, too, it does you no good to hide under a rock and try to avoid your duty to pay support.  Court have the power to order you to pay retroactive child support.

Think you can lessen your support obligation by quitting your high-salary job to see t-shirts on the beach?  Wrong again.  Texas child support laws allow Courts to consider whether your are “intentionally under-employed” and order you to pay support based on what you could be making.

Can a child chose which parent to live with in Texas?

At the age of 12, a family court judge is required to interview a child as to a choice of primary parent.  While Texas custody law may give a child a voice in divorce and custody cases, the Court is not required to follow the child’s stated preference.  There are usually many other factors that a court will rely on in deciding which arrangement is truly in the child’s best interest.  As a general rule, the older the child, the more weight a Judge will give to his or her stated desires for custody.

Who ultimately decides which parent the child(ren) will live with in Texas?

Every Texas child custody order requires one parent be designated as the parent with the exclusive right to designate the primary residence of the child Such a designation will almost always include a “geographic restriction” requiring that the “primary” parent live with the child in the current county of residence or a contiguous county.  For instance, the order may read, “mother has the exclusive right to designate the primary residence of the child within Tarrant and contiguous counties.”  However, this restriction may be lifted automatically if at the time the primary parent seeks to relocate, the non-primary parent no longer resides within Tarrant or a contiguous county.  In some limited instances, a family court will allow a primary parent to relocate even if the non-primary parent continues to reside in the home county.

Where parents agree, such as in a divorce or custody mediation, they can submit an order to the court stating that neither parent is designated as primary conservator but also requiring that the child’s primary residence be established within a defined geographic area.  Alternatives to court such as mediation and collaborative divorce allow parents much more creativity and flexibility when making plans for their children.

What is a parenting plan and do I need one in Texas?

A parenting plan is a written document that outlines each parent’s responsibilities to their child(ren) after the divorce. Every state has its own requirements for what should be included in a parenting plan, but it will usually address issues like where the children will live, which parent will pay for certain expenses, how often the parents see their child(ren), and how major decisions about the child(ren) will be made.

A parenting plan is often created in mediation with a judge’s approval, or it can be created by parents if they are able to work together amicably after their divorce. If the parents cannot agree on a parenting plan, then a judge will determine what should be included as part of a court-ordered parenting plan.

Is it possible to legally move with my child(ren) in Texas?

Before considering a move or relocation, carefully read your divorce or custody orders.  Typically, those orders will contain a provision stating the primary residence of the child is limited to the home county and counties contiguous thereto.  If you see such a provision, your work is cut out for you!  First, ask, does the non-primary conservator still live in the area?  If he or she has moved on beyond the home county and contiguous counties, you’re in luck!  You can relocate without a formal modification of your prior divorce or custody order.

On the other hand, if the other parent continues to live inside the defined area, you have a longer road to relocation.  Either you are going to negotiate a modification of your order with the other parent, or you will need to file a petition of modify the prior order, asking the Court to permit you to relocate with the child.  Fair warning… these suits are generally disfavored by Courts, so discuss your options with the best family law attorney you can find!

Can child custody be modified in Texas?

When a Family Court enters an order in a divorce or child custody case, the court retains continuing jurisdiction to modify those custody orders when circumstances change.  Your main consideration is whether there has been enough of a change to warrant a modification in court.  The Texas Family Code requires that there be a material and substantial change of circumstances and that the modification requested is in the best interest of the child.  Big ticket changes like drug abuse, child abuse or neglect are almost always sufficient to warrant a custody modification.  More subtle changes in circumstances such as changes in household composition, school difficulties, or job changes are up for grabs on a case-by-case basis.  Always talk your case over with an attorney who practices in your county to better understand your chances of success in court.  You want to make sure your investment will yield the results you seek.