I often have potential clients that come into my office wanting “custody.”
Custody is a term that means different things to different people. In my experience,
child custody matters can be one of the most contentious types of family
law. In this blog post, I will discuss how
custody is determined in Texas.
Issues Related to Children
When parents cannot agree their case will go to court for a custody determination.
Every custody battle will be examined by a Judge on a case-by-case basis.
The judge will then make a ruling based on your family’s unique
circumstances and Texas Law.
In Texas when parents can no longer co-parent and seek court intervention
there are four areas that must be addressed child custody cases handled
by a court:
- Rights and Duties
- Parenting time / Visitation (Possession and Access)
- Child Support
Whenever children are involved in a Texas court case “Best Interest of the Child” is standard that judicial decisions must be made including the
above four issues.
Texas Family Code Section 153.002 makes it clear that, "the best interest
of the child shall always be the primary consideration of the court in
determining the issues of
possession of and access to the child."
The Best Interest of the Child
One of the most cited case regarding best interest is the Texas Supreme
Court's 1976 decision
Holley v. Adams. The Court wrote that certain factors to consider in ascertaining the
best interest of a child include the following:
- the desires of the child
- the emotional and physical needs of the child now and in the future
- the emotional and physical danger to the child now and in the future
- the parenting abilities of the individuals seeking custody
- the programs available to assist those individuals to promote the best
interest of the child
- the plans for the child by these individuals or by 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
These are not the only factors a court can consider when making a “best
interest” determination. Nevertheless, the
Holley Factors provide a framework for analyzing “best interest.”
- Desires of the child
One of the holly factors includes the desires of the child. Texas Family
Code 153.009 provides on the motion of either party a Judge must interview
a child who is age 12 or older in the Judge’s chambers to determine
the child’s wishes.
It is a common misconception that a child age 12 or older gets to decide
which parent they get to live with. If the child tells the Judge that
they want to live with a specific parent, the court can consider that
into its decision but it is not necessarily the deciding factor.
- Emotional and physical needs of the child now and in the future
The court may consider the development of the child and how they are likely
to benefit from being placed with either parent as a conservator. A child's
emotional and physical needs should ideally be satisfied to as near as
possible to the child's state prior to divorce.
- Emotional and physical dangers to a child, now and in the future;
Danger to a child can be short-term and potentially ongoing, and the court
must weigh evidence supporting concerns of either physical or emotionally
dangerous conditions surrounding parents seeking conservatorship and possession
and access to the child.
A criminal record, and abuse in particular, can be a major factor in custody
determinations. If one parent has a history of abusing the children, they
are unlikely to be granted any sort of custody, and may even be required
to have their
visitation with the children be supervised, if they are granted visitation rights at all.
- Parenting abilities of the parent or individual seeking custody;
If one of the parents has consistently taken care of the child's daily
physical and emotional needs, and the other parent would not likely perform
the same parenting duties to the extent to which the child is accustom,
the court will weigh those abilities accordingly. Work and travel schedules
can be a factor in assessing which parent has the best parenting abilities.
How each parent interacted with the child in the past, and the degree to
which they were involved in the child’s life usually has a strong
impact on the custody decision. If parental involvement in the child’s
life was split equally before, the courts will likely want to maintain
such a split. If one parent clearly handled all aspects of raising the
child before, they may be more likely to grant sole custody to that parent.
- Programs to help custodial parents foster the best interest of the child;
Being an active part of the community where a child lives is important
to their sense of self and healthy development. If a child actively participates
in local civic, church and sports programs, a court may weigh the evidence
of the child's activities in evaluating their best interests, to decide
conservatorship and possession and access.
- Plans for the child by the parents, individuals or agency seeking custody;
When custody and visitation issues are contested, the parties meet with
mediators, court-appointed attorneys, and parenting facilitators, to try
to work out a parenting plan in the child's best interests. In this
process, which could go to hearing and trial in family court, parents
identify and write their proposed plans to manage and provide for the
mental, emotional and physical needs of the child.
Parents who are unwilling to cooperate with the other parent or consistently
try to undermine and badmouth the other parent in front of the children
are less likely to receive custody rights. A parent that shows a willingness
to cooperate with the other parent when it comes to visitation and coparenting
will have a stronger case for their custody wishes.
- Stability in the home and proposed placement location;
Generally, if a child is well adjusted in the home where the family resided
before the court, and the parent to continue residing in that location
is the better parent to be the conservator with sole possession and access,
the court will favor a decision that least disrupts the child's daily
life. If however, the current situation is detrimental, and one of the
parents seeking custody is moving to a much better living situation with
plenty of benefits to the child, the court may consider the evidence of
The stability of the environment in which each parent lives can have a
major impact on custody decisions. If one parent has a fluid or unstable
living situation, they are not likely to be granted primary custody.
Courts often lean towards achieving as much continuity for the child as
possible. They recognize that change can be incredibly difficult for children
to cope with, and they want to keep as many aspects of the child’s
life the same. Thus, if the child has already been living with one parent
full time, or one parent is getting the family home, the court may rule
in favor of granting that parent primary custody so the child can maintain
- Acts or omissions by a parent indicating an improper parent-child relationship; and
Abuse and neglect of a child, in any discernible format, is certainly considered
by the court, as it would help predict circumstances in the best interest
of the child. The failure of a parent to meet a child's mental, emotional
and physical needs, on a temporary or other basis, can be the basis upon
which the court determines conservatorship.
- Excuses for the acts or omissions of a parent seeking custody.
There may be temporary conditions a court considers when evaluating options
for the placement and custody of a child. If the parent, most likely to
be the better conservator, has a temporary condition or issue affecting
their ability to carry out parental duties, the court may consider evidence
of the temporary nature of such a condition, and information relative
to the likelihood of such a condition to reoccur.
Please keep in mind that, with the possible exception of the “best
interests of the child” factor, none of the aforementioned factors
on their own will be the sole determining reason a court rules one way
or another in your custody case. They will always look at all the evidence
and make a decision based on the big picture. If you are faced with a
child custody dispute and you need legal guidance, please contact the
Law Office of Bryan Fagan today to learn how we can help
Factors that Courts Won’t Care About
Previously, it was common in family law to prefer mothers on custody issues.
On November 7, 1972, Texas voters approved the Equal Rights Amendment
to the Texas Constitution.
As a result the following issues are no longer considered when deciding
- Marital Status
- Racial Issues
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.
Sole Managing Conservator
sole managing conservator is a person that is granted exclusive right to make decisions for the
child. In order to avoid joint conservatorship, a must prove that it is
not in the “best interest of the child.”
This is usually seen in situations where a parent:
- has committed domestic violence against a member of the family
- substance abuse problems or
- engaged in behavior that endangers the child
Joint Managing Conservator
joint managing conservator is one of two people who share the rights and duties of a parent, even
if the exclusive right to make certain decisions is awarded to only one person.
A possessory conservator is a person who is designated by the court as
having a right to possession of a child under specified conditions, and
who is authorized during their periods of possession to exercise certain
rights of a parent.
It is a common misconception regarding joint managing conservators is that
each parent must have equal periods of possession.
For many people getting a divorce is can be difficult. However when children
are involved things can become even more complex. This can be because
parents may disagree regarding a parenting plan, decision making, or care
of the children. When this happens the case may have to go to court and
a judge will make the decision.
Rights and Duties
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.
In most family cases a parent also has the the following rights and duties:
- the duty of care, control, protection, and reasonable discipline of the children;
- the duty to support the children, including providing the children with
clothing, food, shelter, and medical and dental care not involving an
- the right to consent for the children to medical and dental care not involving
an invasive procedure; and
- the right to direct the moral and religious training of the children.
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.
However, when parents are appointed Joint Managing Conservators, the court
is mandated to allocate these rights duties either:
- exclusively, or
A joint right is when you can exercise subject to the consent of the other parent.
The following right are almost always made joint rights:
- consent to marriage or
- enlistment in the armed services
An independent right is when either you or the other parent can exercise
the right without conferring with each other and neither of you need the
The following rights are almost always made independent:
- The right to receive information about the children,
- consult with physicians and teachers, and
- direct the moral and religious training of the children.
Exclusive rights are when you can exercise the right without conferring
with the other parent, do not need the other parent's consent, and
the other parent cannot exercise this right at all.
The following rights generally given exclusively to one parent:
- to receive child support and
- the right to designate the primary residence of the children.
Parenting time / Visitation
Part of settling the children issues involves establishing a schedule when
the children will spend time with each parent. Under the Texas Family
Code, it is presumed to be in the best interest of the child that this
schedule be the
Texas Standard Possession Schedule. However, parents can agree to do something different.
Standard Possession Order (Parents within 100 Miles of Each Other)
During the Regular School Year
1st, 3rd, and 5th Weekends
Pick up on Friday at 6PM and Return on Sunday at 6 PM
Every Thursday from 6pm – 8pM
Elections During the Regular School Year
1st, 3rd, and 5th Weekends
picking up the children from school on Friday and return to school on Monday.
Every Thursday pick up from school and return to school on Friday.
Some parents make this election because they can have more time with their
child. It also allows them to have less interaction with the other parent.
In even numbered years, the non-primary parent has the right to possession
of the child during spring vacation.
The non-primary parent receives the right to have the child for 30 days
during summer vacation.
Holidays alternate. For example, if the father had the children for thanksgiving
then the mother would have the children for Christmas. In the next year,
it would be the revers.
Odd Number Years
Mother has the right to possession of children from time school is dismissed
for the thanksgiving holidays
Father has children from time school is dismissed until noon on December 28
Mother has the children from December 28 at noon until 6 p.m. on the day
before school resumes after the Christmas vacation.
Even Number Years
Father has the right to possession of children from time school is dismissed
for the thanksgiving holidays
Mother has children from time school is dismissed until noon on December 28
Father has the children from December 28 at noon until 6 p.m. on the day
before school resumes after the Christmas vacation.
Standard Possession Order (Parents over 100 Miles of Each Other)
During the Regular School Year
- At the option of the non-primary parent they can have regular visitation
as described above or
- Or 1 weekend a month of that parents choosing
- No Thursday visitation
The non-primary parent gets every spring vacation.
The non-primary parent receives the right to have the child for 42 days
during summer vacation.
Same as above.
Custody includes financial support of the child. The Texas Family Code
contains a rebuttable presumption that application of the
statutory child support guidelines is in the best interest of children. Under Texas Family Code Section 154.122
guidelines child support is rebuttably presumed to be in the “best
interest of the child.”
Child Support usually includes one parent paying:
child support and
- providing health insurance for the child
Child support is determined in Texas based on a percentage of the paying
parent’s net income up to the first $8550/month of income. The parents
usually share the uninsured medical expenses between them.
The exact formula for calculating guideline child support is very involved
but your estimate as follows:
Net Resources =
- Monthly Gross Income
- Less Federal Income Taxes (single, one deduction)
- Less Union Dues
- Less Medicate and Social Security Taxes
- Less Insurance Premiums paid for Children
Number of Children
If the parent paying child support has no net resources, the court can
impute income equal to minimum wage under Texas Family Code Section 154.068.
- “In the absence of evidence of a party’s resources, as defined
by Section 154.062(b), the court shall presume that the party has income
equal to the federal minimum wage for a 40–hour week to which the
support guidelines may be applied.”
How Long is Child Support Paid?
Child support is paid until the minor child turns 18 or still in high school, whichever
Step Down Provisions
If you have more than one child, the amount of child support will change
over time. For example, if you have two children, the parent paying child
support will most likely be paying 25% of their net resources as child
support. When the first child graduates from high school the parent would
start paying 20% of their net resources as child support.
Sole Discretion of Primary Parent
Child support can be used at the discretion of primary parent. The parent
who pays child support has no say on how that money is used.
What if Child Support Payments are not made?
Violation of a child support court order can be dealt with through child
support enforcement options which can include:
- Jail Time
- Fines and
Some of the options that are used to help insure court ordered child support
is paid include:
Wage withholding – A notice is sent to the parent’s employer directing the
employer to automatically deduct the amount of support from the parents
wages. The money is then sent to the child support office who distributes
it to the child.
Contempt – If a parent violates a court order to pay child support the court can
hold that parent in contempt. This means the parent can be jailed and
placed on community supervision for up to five years. In addition, the
parent can be ordered to pay the attorney fees associated with the enforcement.
Money Judgment – If child support is not timely paid the unpaid child support can be reduced
to a money judgment that starts to accumulate interest.
License Suspension – If a parent fails to pay child support for more than 90 days b a court
can order the suspension of any license that has been issued to that parent.
If you want to know more about what you can do,
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Other Articles you may be interested on regarding Custody
- When Can a Minor Child Weigh in on Custody Decisions in Texas?
- Texas Child Custody Modifications
- Amicus Attorneys in Child Custody Disputes in Texas?
- Sole Managing Conservator in a Child Custody Case in Texas?
- Teens with Children, Child Custody and Child Support in Texas
- Child Custody and Divorce in Spring, TX
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
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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
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Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
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