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 conservatorship and 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 such claims.
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 continuity.
- 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 custody issues:
- 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
A 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
A 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 invasive procedure;
- 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 invasive procedures;
- 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 other's consent.
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 is longer.
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, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested on regarding Custody
- Child Custody Basics for Texas Parents Revisited
- 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
- Custody and Visitation Rights of Grandparents in Texas
- 11 Things You Must Know About Texas Child Custody
- 12 Texas Custody & Conservatorship Battle Tips
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.
Our 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, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.