Texas child custody process can be a confusing, emotional, and stressful maze to navigate.
It does not help that the laws concerning child custody and divorce vary
by state. This blog article is intended to help answer many of the important
questions asked by my clients and potential clients.
Where can a new
child custody case be filed?
- Does the court still have power over a child if one of the parents moves
out of state?
- Can my custody order be modified?
child custody different in Texas then in other states?
- Can I get sole custody of my child?
- Can my 12 year old decide which parent they live with?
- What rights do a conservator of a child have?
- If I am the sole managing conservator does that mean the other parent does
not have any rights?
- Does a history of domestic violence or any other criminal past record matter
in a custody case?
- How does a court decide who should be the primary conservator of a child?
- Do I Have to Pay Child Support if I Have Joint Custody of My Child in Texas?
Where can a new custody case be filed?
Under Texas Family Code 152.201 a new custody case can be established regarding
a child if: 1) The State is the “Home State” of a child on
the date the commencement of the proceeding. 2) A court of another state
does not have Jurisdiction or has declined Jurisdiction. In other words
if you are filing for
custody of a child, your child needs to have lived in the state for at least six months.
You can read more about this topic in my blog post “Help!! My Ex-Spouse Kidnapped my Child.”
Does the court still have power over a child if one of the parents moves
out of state?
When parents of a child get
divorced in Texas and continue to live in Texas, Texas clearly has jurisdiction of the parties.
But what happens if one of the parents moves out of state? If a parent
is filing for the
custody of a minor in Texas, that parent will need to provide the names of the people who have lived
with the child for the past five years and where the child has lived.
Can my custody order be modified?
Child custody issues can be modified in Texas by the court that made the initial custody decision. If a Court has made
an initial custody determination regarding a child then that Court has
exclusive continuing Jurisdiction under Texas Family Code Section 152.202.
I like to say child custody issues are never done until the child turns 18.
How is custody different in Texas then in other states?
In Texas what most people think of as custody is called conservatorship.
Chapter 153 of the Texas Family Code sets forth the framework for appointing
individuals as conservators and granting rights of possession and access
to a child.
There are two types of conservators:
- managing conservator and
- possessory conservator
Managing conservators are then further divided into sub-categories:
- sole managing conservator and
- joint managing conservator
Under the Texas Family Code it is presumed that the parents should be named
joint managing conservators. One of the most fought over rights is the
right to choose the primary residence of the child. The parent who gets
to make this decision is often referred to as the primary conservator.
You can read more about this topic in my blog article “Child Custody Basics in Texas.”
Can I get sole custody of my child?
Many parents who ask me this question are really referring to being the
primary concervator as discussed above. However, the answer both to the
question on whether they can be the primary conservator or the sole managing
conservator have the nearly the same answers yes if a court decides “it
is in the best interest of your child.” “When Can a Minor
Child Weigh in on Custody Decisions in Texas?”
Can my 12 year old decide which parent they live with?
I often have a parent ask me if, “If their 12-year-old child can
decide which parent they live with?” This is one of the biggest
myths in Texas child custody law. There is a magic age when a child can
decided between parents and that age is 18.
The big reason that a being12 or older matters in a custody case is that
if a parent requests they must be interviewed by the judge. You can read
more about this topic in my blog post “When Can a Minor Child Weigh in on Custody Decisions in Texas?”
What rights do a conservator of a child have?
sole managing conservator is a person that is granted exclusive rights to make decisions for the
child. If a parent is named
sole managing conservator under Texas Family Code Section 153.074 the parent will have the following
rights and duties exclusively (unless limited by the court):
- the right to designate the primary residence of the child;
- the right to consent to medical, dental, and surgical treatment involving
- the right to consent to psychiatric and psychological treatment;
- the right to receive and give receipt for periodic payments for the support
of the child and to hold or disburse these funds for the benefit of the child;
- the right to represent the child in legal action and to make other decisions
of substantial legal significance concerning the child;
- the right to consent to marriage and to enlistment in the armed forces
of the United States;
- the right to make decisions concerning the child’s education;
- the right to the services and earnings of the child; and
- except when a guardian of the child’s estate or a guardian or attorney
ad litem has been appointed for the child, the right to act as agent of
the child in relation to the child’s estate if the child’s
action is required by the state, the United States, or a foreign government.
Joint Managing Conservator is one of two people who share the rights and duties of a parent. With
Joint Managing Conservators, each parent is parceled out a list of rights and duties that they share
in regards to the child or children either:
- exclusively, or
If I am the sole managing conservator does that mean the other parent does
not have any rights?
In most family cases a parent of a child whether sole, joint, or a possessory
conservator, has the following rights and duties at all times:
- the right to receive information from any other conservator of the children
concerning the health, education, and welfare of the children;
- the right to confer with the other parent to the extent possible before
making a decision concerning the health, education, and welfare of the children;
- the right of access to medical, dental, psychological, and educational
records of the children;
- the right to consult with a physician, dentist, or psychologist of the children;
- the right to consult with school officials concerning the children's
welfare and educational status, including school activities;
- the right to attend school activities;
- the right to be designated on the children's records as a person to
be notified in case of an emergency;
- the right to consent to medical, dental, and surgical treatment during
an emergency involving an immediate danger to the health and safety of
the children; and
- the right to manage the estates of the children to the extent the estates
have been created by the parent or the parent's family.
- the duty to inform the other conservator of the children in a timely manner
of significant information concerning the health, education, and welfare
of the children; and
- the duty to inform the other conservator of the children if the conservator
resides with for at least thirty days, marries, or intends to marry a
person who the conservator knows is registered as a sex offender under
chapter 62 of the Code of Criminal Procedure or is currently charged with
an offense for which on conviction the person would be required to register
under that chapter.
THE OTHER PARENT STILL GETS VISITATION
When one parent is designated as Sole Managing Conservator, the other parent
will be designated as Possessory Conservator. Possessory Conservator designates
the parent who has a right to “possess” the child or children
through an ordered visitation schedule.
Under the family code, both parents are encouraged to ensure the welfare
of the child. Even one of parent is awarded sole custody, both parents
are expected to act in a manner that ensures the the best interest of
Does a history of domestic violence or any other criminal past record matter
in a custody case?
In Texas, there is a presumption under the law that parents should be named
as joint managing conservators. To determine the appropriate
conservatorship of the child, the court will use the "best interests of the child"
standard. When determining if parents should be appointed Joint or Sole
conservators, the "best interests of the child" standard considers
many factors, including whether:
- The child’s desires
- The emotional and physical needs of the child, now and in the future
- Danger to the child, now and in the future
- The parental abilities of both parents
- Stability of the home environment
- The plans each parent has for the child
- Whether there is evidence of domestic violence
- Whether either parent has filed a false report of child abuse
If there has been domestic violence, then it becomes easier to rebut the
joint managing conservator presumption. The Texas Family Code prohibits
the appointment of parents as joint managing conservators if credible
evidence of domestic violence is presented.
How does a court decide who should be the primary conservator of a child?
The primary parent is awarded the exclusive right to designate the primary
residence of the child. There are a number of factors the Court considers
when deciding who should be given the temporary exclusive right to establish
the primary residence of the child at a Temporary Orders hearing.
Assuming both parents are fit the Court is going to look at which parent
has been the primary caretaker of the children. Some things a court will
consider when making this determination include:
- Who fed your child;
- Who bathed your child;
- Who got your child ready for school;
- Who took your child to school or daycare;
- Who picked up your child from school or daycare;
- Who scheduled, attended and took the child to and from doctors’ appointments;
- Who attended school activities and parent-teacher conferences;
- Who participated in the child’s extracurricular activities; and
- Who helped with the child’s homework?
Generally, the way custody is decided in Texas is that court will look
at which parent has been doing those things most of the time and unless
there is a good reason to do otherwise that parent will be made the primary
conservator of the child. You can read more about this in my blog article “Who gets to keep the kids while the divorce is pending in Texas?”
Do I Have to Pay Child Support if I Have Joint Custody of My Child in Texas?
Child support is still paid when parents have joint custody in Texas in most situations.
You can read more about this topic in my blog article “Do I Have
to Pay Child Support if I Have Joint Custody of My Child in Texas?”
If you want to know more about what you can do,
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“16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- 12 Texas Custody & Conservatorship Battle Tips
- Child Custody Basics in Texas
- Roadmap of Basic Divorce Procedure in Texas
- Child Custody Basics in Texas
- 6 Mistakes that can Destroy Your Texas Divorce Case
- 10 Quick Tips About Parental Visitation
- Help!! My Ex-Spouse Kidnapped my Child
- Who gets to keep the kids while the divorce is pending in Texas
When Can a Minor Child Weigh in on Custody Decisions in Texas?”
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children
and families. If you have questions regarding
divorce, it's important to speak with one of our
Houston, TX Divorce Lawyers right away to protect your rights.
divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and
developing a strategy to meet those goals.
Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
form. The Law Office of Bryan Fagan handles
Divorce cases in Houston, Texas, Cypress, Klein,
The Woodlands, the FM 1960 area, or surrounding areas, including
Fort Bend County and